The goalpost is being shifted so often in the matter of the appointment of the Chairperson of the Guyana Elections Commission that the whole process seems to have drifted from centre field to off the beaten track.
The debate is now revolving around whether the President has to provide reasons for his rejection of the list. Another debate is whether the Courts can order the President. Those are not the issues in contention.
The President does not have to give a reason for not choosing any of the names on the list. But he does have to give an explanation if he rejects the list as not suitable. He is not required to make a judgment on the list. He is required to make a judgment on the names on the list. He can reject all of the names on the list, since it is his prerogative to determine whether any or all of them are not objectionable to him.
The President is neither legally nor morally bound to give any reasons for his not choosing any names on the list. He can choose any name or he can reject all the names.
He cannot reject the list so long as it has six names. He can only reject the names on the grounds that he finds all of them objectionable. He does not have to say why. Similarly, if he had chosen a name, he does not have to say why. He chooses whomever he chooses.
The second debate that has emerged is the misunderstanding that the Leader of the Opposition is planning to challenge the President’s decision in this matter. This is not the issue at all. There is therefore no need for any long-winded treatise on whether the President can be compelled in the exercise of his Presidential prerogative.
What the Leader of the Opposition has proposed is that Guyana’s highest Court of Appeal, which so happens to be the Caribbean Court of Justice, be approached for an interpretation as to whether the sole qualification for appointment is a judge, as the President seems to be inferring from his unclear comments made at a media brunch a few weeks ago.
The President has to come out clearly and state whether it is his interpretation that the list must contain all judges, since only a judge can be chosen. He has to state this fact. He cannot dance around this issue. He has to indicate his interpretation of the relevant article of the Constitution, and if it is his belief that only a judge can be appointed.
If this is the case, then there is a legal conundrum which can only be resolved by an approach to the Court for an interpretation, not for an order compelling the President to do anything.
The Leader of the Opposition is within his right to seek clarification from the President. The President is not being clear on this issue. It makes no sense for the President to ask the Leader of the Opposition for another list of names. The Leader of the Opposition needs to be clear as to this issue about only a judge being qualified. If this is what the President and his advisers believe, then the problem becomes one of interpretation of the Constitution. This problem can only be resolved by asking the highest court in our land for a legal interpretation, not a compulsion order.
The goalpost should not be shifted. The President must come out clearly and state his interpretation of the constitutional provision dealing with the appointment of the Chairman of GECOM. If this interpretation is not the same as the Leader of the Opposition, then the best way to resolve it is through recourse to the Court.
It is a simple matter which should not be complicated by the extraneous and tangential arguments being advanced at present in the media, about reasons for decision and about the jurisdiction of the court to compel the President to act. Neither is relevant to the present controversy.
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