I guess we will have to wait months, maybe even a year, before we have the final legal position given by the CCJ on the constitutional right of the President to select a GECOM chairman of his choice without choosing from the list submitted by the Opposition Leader. Anil Nandlall has given notice of appeal to the CCJ.
In a previous column, (Monday, October 8, 2018 captioned, “My opinion on the GECOM chairman appointment), I argued that the crucial area was “not unacceptable to the president.”
I contended that if the president (not specifically Mr. Granger) had made up his mind that he wanted Mr. Jones, a Guyanese from Mauritius, then he could classify all the submitted names as not being fit and proper. I was and I am still of the opinion that the framers did not want him to act unilaterally.
Now here is an interesting pronouncement by one of the Appeal Judges, Justice Barnes. She stated that the president had a right to act unilaterally in the absence of consensus and after a period of eight months. Questions are bound to arise here.
First, why did consensus not take place, and could one of the two persons – Opposition Leader or President, be at fault here? Secondly, the president indeed had to act because time was going and indeed eight months had passed. But who caused a lapse of eight months – the Opposition Leader or the President?
Both Justice Dawn Gregory and Justice Rishi Persaud concurred that the president should not have been constricted to pick from the list. Judge Gregory submitted that the existence of a list does not mean the president has to select from it. Judge Persaud argued that to mandate the president to choose from the list is to interfere with his discretion.
If you accept what these two judges adumbrated then there one is tempted to ask if this is what the framers intended. The court thinks so.
For me it reduces the importance of the list, the role of the Opposition Leader in the selection of the GECOM chairman, and the consensus model in the constitution. Based on the ruling of the Court of Appeal, the Carter-Price formula did not really have the legal substance to create a consensus model.
The unanimous decision of the court that the president has the right to appoint a chairman of his own choice then means that since 1990 when the Carter-Price formula was adopted and put into the constitution, it was merely a blueprint that the president can accept if he wants to. Justice Gregory was unambiguous in her delivery. She said that the designation of fit and proper was for the president alone to determine and also to decide who is acceptable to him.
There is an interesting observation by Justice Persaud that should hold interest for those who study constitutional law and political theory. The Judge reasons that to force the president to choose from the list; “…that could possibly lend itself to politicking, abuse by one … such an interpretation may also attempt to elevate the Leader of the Opposition to a position over and above the norms associated with his authority.”
But that very constitution (Article 127) gives formidable power to the Opposition Leader. Two of the most powerful persons in this country, and by power is meant, quintessential legal power – the Chief Justice and the Chancellor – cannot be confirmed in their respective position unless the Opposition Leader agrees.
We had the ugly situation where Chief Justice Ian Chang and Chancellor Carl Singh ended their career on the bench in acting position because Opposition Leader Robert Corbin and David Granger did not assent to their confirmation.
At the moment, the Chief Justice and Chancellor are acting because Opposition Leader Jagdeo has refused to endorse the president’s choice of a chancellor, Belizean Chief Justice, Kenneth Benjamin. The outgoing President of the CCJ, Justice Sir Dennis Byron, said that this is an unfortunate situation in Guyana and needs to be resolved soon and observed that such a state of affairs is unacceptable in a modern democracy.
Now according to one Court of Appeal judge, to have the constitution empower the Opposition Leader to decide who shall be the Chairman of GECOM without the right of the president to reject is to widen the authority of the Opposition Leader beyond what is necessary.
But the same Opposition Leader has power that today prevents the president’s choice of Chancellor to take his seat. The court has ruled. The appointment of GECOM’s chairman was properly done. Over to the CCJ.
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