The search for a new Chairperson of the Guyana Elections Commission (GECOM) is at a stalemate
with another meeting between Government and the Opposition described as “futile” by the latter.
GECOM, the body which overlooks the production of National Identification Card, and manages local and general elections, is facing some pressure with an ongoing audit into several questionable procurement transactions.
Dr. Steve Surujbally is to officially depart today after more than decade at the entity.
The announcement of his retirement last year saw a difference of opinion between the Government and the Opposition on the process used to select a new Chairperson. At the heart of the matter is interpretation of the Constitution with regards to the qualifications and merits of the candidates.
A list of candidates submitted by Opposition Leader, Bharrat Jagdeo, was rejected by President David Granger.
Meeting yesterday were Minister of Legal Affairs, Attorney General Basil Williams for Government and Anil Nandlall and Priya Manickchand, on behalf of the Opposition.
According to a statement from the AG Chambers, the meeting centered on Article 161 (2) of the Constitution with respect to the appointment of the Chairman of the Elections Commission.”
The Opposition representatives were presented a copy of the Government’s response.
“Mr. Nandlall has advanced the argument that the ejusdem generis rule of construction does not apply in Guyana. This position is erroneous. However, before refuting Mr. Nandlall’s misguided argument it is instructive to set out what is the ejusdem generis rule.”
According to the AG, the ejusdem generis rule says that general words which follow two or more particular words in an act must be confined to a meaning of the same class as the particular words.
“The intention is to cover a wide range of similar circumstances by first creating a genus, category or class that is two or more examples, followed by a general expression which has the effect of extending the operation of the statute to all particular circumstances which are within the genus created. In this way, the statute does not need to list all relevant examples.”
Williams cited a number of local and international cases to back his arguments.
“The rule is a facet of the principle of the latin maxim, noscitur a sociis, which contemplates that a statutory term is recognised by its associated words. Therefore, when general words are
juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context.”
The AG noted that the persons eligible to be Chairman of the Elections Commission according to Article 161 (2) shall be a judge or a person who has held office as judge or a person who has the qualifications to be a judge, or any other fit and proper person.
President has final say
“When looking at the construction of the section one can reason that the categories are in the order of preference. This order coupled with the use of the word shall (mandatory in this sense) conveys to us that the ideal person in the contemplation of the framers of the constitution is someone who falls into the first category namely, a judge or a person who has held office as a judge or a person who qualifies to be a judge.”
He said that supporting this proposition is the proviso to Article 161 (2) which states that “Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge.”
As such, Williams argued, consequently, the Leader of the Opposition’s list of candidates must include the persons required by the Constitution in the priority category supported by the proviso.
“A list from the Leader of the Opposition with candidates that only fit into the secondary category namely ‘any other fit and proper person’ would be an unacceptable list. Finally, it must be clearly pointed out that the President is empowered by the Article 161 (2) to deem a list acceptable or unacceptable. Further, it is the President who ultimately decides whether a candidate is fit and proper for the office of Chairman of the Elections Commission,” the AG insisted.
However, Nandlall in a separate statement of the meeting, made clear where the Opposition stood.
He said that at the meeting yesterday, rather than offer his or the Government’s interpretation of Article 161 (2) of the Constitution, as he promised on the last occasion, the AG handed over a document titled: ‘Response of Hon. Attorney General and Minister of Legal Affairs, Basil Williams, SC, MP to the Opposition’s contention on Article 161 (2) of the Constitution’.
“In this document, the Attorney General simply essayed a response to my interpretation of Article 161 (2) of the Constitution, which I left with him the last time we met. The gravamen of his presentation is that he disputes that the ejusdem generis rule of construction of statute applies to Guyana. In our view, this does not assist in resolving the matters of controversy.”
Nandlall said that, in fact, if the Opposition is to follow suit and reciprocate, it would end up creating another and new controversy. This would simply distract from the issue at hand.
He noted that in the final few paragraphs of the document, the AG simply recites Article 161 (2) of the Constitution and contends that in his view… “the ideal person in contemplation of the framers of the Constitution is someone who falls into the first category namely, a Judge, a person who has held office as a Judge or a person qualified to be a Judge… a list from the Leader of the Opposition with candidates that only fit into the second category namely ‘any other fit and proper person’ would be an unacceptable list”.
“Therefore, the Attorney General has abysmally failed to address the quintessential issue and the real crux of the matter: who qualify as/or what are the attributes of, “any other fit and proper person”. In the circumstances, the engagement with the Attorney General, as I predicted, was futile.”
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