The unilateral process undertaken to appoint Justice (Ret’d) James Patterson as Chairman of the Guyana Elections Commission (GECOM) was flawed, the Caribbean Court of Justice, (CCJ) said in a ruling yesterday.
Delivering the Court’s summary findings via Audio/Video link, CCJ President, Justice Adrian Saunders said that in making a determination, the Regional Appellate Court had to consider ‘the proper meaning’ of Article 161(2) of Guyana’s Constitution.”
That Article sets out the requirements for a person to be eligible for the appointment as GECOM’s Chairman. The Article also sets out the general process for selecting the Chairman. Further to determine, the meaning of the Constitutional Provision, Justice Saunders noted that the Court had reviewed the drafting history of Article 161(2).
The CCJ President reasoned that while the Court found the decision of President David Granger to unilaterally appoint Justice Patterson was justified on several bases, the reasons proffered by the Attorney General Basil Williams and his legal team, lacked merit.
The Judge noted that in an attempt to defend his decision, the President had alluded to the discretional powers in Article 161 (2) granted to him.
Saunders pointed out that specific reference had been made to the Presidential immunity under found in Article 182 (1) which empowered the President to act in his own deliberate judgment, when exercising such discretion.
The CCJ Judge said that after rejecting three lists of potential candidates for the position, the President decided that it would not serve the public interest to further delay the appointment of a Chairman.
“The President sought to rely on the provisions as well as the July 2017 ruling of the High Court in Gaskin against the Attorney General. The case had been decided after the second list given by the Opposition Leader Bharrat Jagdeo was rejected by the President.”
Saunders said that these were among the reasons put forward by the Attorney General and his team.
The Judge noted nonetheless that the CCJ considered the submissions and objections of the Attorney General, and found that his objections had no merit and were rightly overruled by the court below.
He said too that it was decided that the propriety of the Chairman’s appointment was a matter, which could be inquired into by the Court given its inherent jurisdiction relating to the interpretation of the Constitution.
“The Court also held that it is its role to authoritatively settle matters of what the constitution means and whether certain actions taken by the constitutional actor is within or outside his or her Constitutional remit.”
As such, the CCJ President reasoned that as in the challenge filed by Opposition Member of Parliament, Zulfikar Mustapha over the President’s appointment of Justice Patterson, “when citizens raise a legitimate question about an appointment that may not be within the rights of the Constitution, the Court should not deny such persons a hearing.”
“Democracy and the rule of law are nourished by the posing of such questions and the Court‘s answers to them,” Saunders asserted.
Exploring the given circumstances, Justice Saunders said the Court found the essence of the case lay in the “proper meaning,” of Article 161 (2).
The Judge held that to look at this meaning, the Court had to take into consideration the drafting history of the Constitutional provision. Saunders also held that the historical evolution of reforms to the constitution for GECOM moved towards inclusion and consensual discourse as opposed to unilateralism and arbitrariness that characterised the process for Justice Patterson.
Delving into its history, Justice Saunders noted the unilateral appointments date back to the 1980 Constitution, when the Elections Commission Chairman was appointed by the President in his own deliberate judgment from among persons who fulfilled certain defined eligibility criteria.
He noted however that, “the provision was modified in 1995 by Act 15 of 1995 which amended Article 161 (2) and carved out a role in the appointment process for the Leader of the Opposition.”
“This modified role of the leader of the Opposition had been proposed by the Carter Centre which in 1990 had been invited by then President Desmond Hoyte to observe the upcoming elections.
This proposal known as the Carter Formula provided for the submissions by the opposition parties of the list of the names of six persons from among which the then President, Desmond Hoyte, would select a Chairman.
The Carter Formula was eventually incorporated into the 1999 Act, which led to amendment of the Constitution. This amendment however came to an end by virtue of a clause limiting its operating to a specified date, and so unilateral appointment under the 1980 constitution was revived.
[But] In 1999, the Constitution reform commission recommended that among other things, the appointment of the Chairman of the Elections Commission would be a consensual process.
The recommendation was adapted by the National Assembly and incorporated in the Amendment Act (2) of 2002.” The Court noted therefore that the evolution of Article 161 (2) had been characterized by a significant shift from exclusivity and unilateralism on the part of the President to inclusion and consensuality involving the Opposition Leader,” Saunders said
Meanwhile, in the summary ruling, the Court noted that Article 161 (2) the paragraph sets out in very specific terms that the issue of the eligibility of candidates for the position of Chairman of GECOM.
“The Leader of the Opposition is required to submit to the President the names of six persons who satisfied the eligibility criteria and the President is obliged to appoint one of the six nominees as the Chairman.”
The court found while it was clear what was meant by meaningful consultations, Article 232 of the constitution is not clear on what process should be followed to accommodate the spirit of consensus between the President and leader of the Opposition
The Court decided therefore that the most sensible approach to operationalise the Article was for the Opposition Leader and the President to communicate with each other in good faith and to perhaps even meet to discuss the eligibility of each candidate for Chairman before the list is formally submitted.
The CCJ also stressed that, “an onus is placed on the President not to find a nominee unacceptable merely because the nominee is not a choice the President would have himself made”.
By a majority, the CCJ found that the President should only find a nominee unacceptable for some good reason on objective grounds.
“If a President were permitted capriciously or whimsically without proffering a good reason to reject eligible nominees, this would frustrate the proper working of the Constitution.
It defeats the amendment of Article 161 (2) and paves the way for unilateral appointments.”
The Court found too that once the Leader of the Opposition demonstrates a will to engage in good faith the prescribed process, the proviso rule in which Granger resorted is hardly an option.
Taking into consideration the engagement between Granger and Jagdeo, the CCJ found that the President could not, as a precondition to considering a nominee, include eligibility requirements that were additional, or at variance, with those prescribed in the Constitution.
“In view of the unfortunate process that was followed; in view of the imposition of criteria that were not sanctioned by the constitution and in view of the absence of cogent reasons for deeming unacceptable the candidates and lists provided, the Court is of the view that the process which was followed in appointing Justice Patterson is flawed.
The Court emphasized, however, that nothing in its judgment was intended “in the slightest degree” to cast aspersions on Justice Patterson’s competence and suitability for the position of Chairman of GECOM. Nor was there any suggestion that President Granger had not acted in good faith.
In a concurring judgment, Justice Maureen Rajnauth-Lee stated that by giving reasons why nominees are rejected, the President will engender greater public trust and confidence in the Elections Commission.
Justice Winston Anderson, also in a concurring judgment, agreed that the process was flawed but did not think that, at the consultative stage, it was necessary for reasons to be given. The Court concluded that the most sensible approach to the process of appointing the Chairman of GECOM is for the Leader of the Opposition and the President to communicate with each other in good faith and, perhaps, even meet to discuss eligible candidates for the position of Chairman before a list is submitted formally.
The CCJ having concluded that the appointment was in breach of the Constitution, invited both sides to present further submissions on June 24, on how the issue should be rectified.
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