A political controversy over the interpretation of a constitutional provision cannot be resolved simply by consultations. The request by the Opposition Leader, for a meeting with his counterpart on the government side, will not resolve the problem concerning the interpretation of the constitutional provision relating to the appointment of the Chairperson for the Guyana Elections Commission.
Both sides are likely, in any meeting, to stick to their positions. Politicians view it as a liability to admit they are wrong. The intractability and political posturing affects the life of the country.
Guyana is a divided country; the divisions are along political lines. Politicians on both sides of the divide have been inflexible. They do not concede easily.
The political divide is mirrored in the wider society. The people find a way of supporting the arguments of their respective leaders, no matter how compelling are the arguments of the other side. It is a sickness that continues to afflict our politics.
It is highly divisive, politically and socially. In fifty years of Independence, a third force party has only managed to gain about 10% of the popular vote. Voting remains along the lines of race. Issues become secondary to our tribal politics.
The divisions are best reflected in tempestuous political debates. People believe what they want to believe rather than what they should believe. They are blinded by reason. There was even the desperate suggestion this week that the Carter Formula was deactivated by the constitutional amendments of 2000. Nothing could be further from the truth. The amendments reenacted the formula.
The Carter Formula, as pointed out by the PPP/C, was intended to ensure a balance in the Guyana Elections Commission. The government side appoints three commissioners; the opposition also appoints three. To ensure balance in the Commission, the Commissioner of GECOM is appointed from a list of six persons nominated by the Leader of the Opposition, and the person appointed from that list must not be objectionable to the President. This formula has become a constitutional convention, and that factor cannot be ignored in any interpretation of the relevant constitutional provision.
The Carter Formula was superimposed on the previous provision which allowed the President to appoint a Chairperson who was either a judge or someone qualified to be a judge. The amended provision now states that the Chairperson can be a judge or a person qualified to be a judge or a ‘fit and proper’ person from a list of six provided by the Leader of the Opposition after consultations with non-governmental parliamentary political parties.
The use of the word ‘or’ is clear. It offers a second route to the appointment of the Chairperson. Having invited the Leader of the Opposition to submit six names, the President has to select from those names, someone who is not objectionable to him. He cannot attempt to argue that a fit and proper person must be a judge. That is a misreading of a statutory provision. He can reject all the names and request a new list, but he cannot place a qualification on the six names submitted, other than a fit and proper person.
The question has been posed as to what is meant by a “fit and proper” person. It is not a new phrase in legal terminology. Fit and proper is not intended to refer to rank or status. A fit and proper person does not have to be a doctor or lawyer or judge. The person can be an accountant or even a retired army major general.
“Fit and proper” is intended to connote the moral standing of the person in the eyes of the law. A “fit and proper” person to be admitted to the Bar must be someone who is not afoul of the law. This is what “fit and proper’ has always meant in statutory interpretation.
It is not for the President to determine whether someone is fit and proper by virtue of that person’s rank. If the President has information that any of the nominees of the Leader of the Opposition is before a criminal court or has been convicted, he can refuse to consider that person, but he cannot reject the list submitted on the basis that one or two names may be tainted criminally.
The President can reject any name once he is not in agreement. That is his constitutional right. But having rejected all the names, he cannot simply dispense with the formula which he himself has invoked for the appointment.
He can invite the Leader of the Opposition to make a second submission of names, and if again he is not in agreement, he can ask for another list until such time as he feels that the process has been exhausted and that it is time for him to exercise his prerogative, in such circumstances, to appoint a judge.
But until that time arrives, the President cannot decide that a “fit and proper” person to Chair the Guyana Elections Commission must be a judge, simply because the Constitutional provision mentions the word more than once. The word “or” is also mentioned four times.
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