I offer below a lengthy extract from my October 25, 2018 column. This column laid out an argument for upturning the Court of Appeal decision in relation to the unilateral appointment of GECOM Chairman by President Granger. Here is what I wrote; “There is a huge amount of pronouncements by those three judges that must stir the curiosity of an intellectual mind. I honestly feel those observations will be deeply reflected upon as the CCJ arrives at its decision.
Here are some of those words by the three judges. I have already looked at what Justice Rishi Persaud said in my last Friday column but for emphasis I will repeat it here. The Justice 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.”
I don’t understand this point and maybe it is because I am not trained in law. But I would like to think that when the constitution was amended to give the Leader of the Opposition a role in the selecting of the chairman, the framers wanted to dilute some of the powers of the president and they did just that with Article 161 with the way the GECOM chairman must be appointed and Article 127, which empowers the Opposition leader, in that his/her consent is needed for the confirmation of the Chancellor of the Judiciary.
Justice Barnes noted that the president had a right to act unilaterally in the absence of consensus and after a period of eight months. But could it be argued that failure of consensus and length of time to choose the chairman were not the fault of the Opposition Leader. Could it be argued that a president, in secretly harbouring his/her desire to have his/her own pick, could aggravate a charged atmosphere to as to bring about consensual failure due to a prolongation of time. At all times in reflecting on this court case, one must remember that the President rejected 18 names. Now here are some absorbing comments from the judges on the names supplied.
I quote from the Chronicle of October 19, 2018, “Another of the judges even went as far as saying that the Opposition leader could not have expected the Head of State to choose from a list where “one or two or three persons, as the case may be, are not acceptable to him.” But here are the words of the Chancellor; “In that manner, if one person or two persons on a list is found to be unacceptable, the whole list need not be rejected. If more than half is found to be unacceptable, well this necessarily narrows the choice and therefore can be reasonably rejected. Conversely, if half or more of the list is found to be not unacceptable, the list is good. Therefore, as argued by Mr. Nandlall, there is no perfect list of six.”
Justice Barnes noted, “I find that to have submitted a list, three sets of names, and simultaneously ask the President, in submitting those names, to choose a chairman, in my mind that could not have been contemplated as achieving consensus… so, I read not unacceptable to the President as requiring the Leader of the Opposition to engage in a separate process of determining acceptability and then after the engagement process is undertaken, then to have gathered one list of six names and to have submitted that as the final list to the choice of a Chairman of the Elections Commission,” The question here is does the constitution obligate the Opposition Leader to do so. I guess we have to wait to hear from the CCJ”.
I ended that column with the words, “I guess we have to wait to hear from the CCJ.” Well we heard from the CCJ yesterday. I am still at a loss to understand why our Court of Appeal couldn’t discern what the CCJ did. That is, since the constitution embodied a formula called the Carter-Price blueprint for selecting a chairman, the days of the president arrogating to himself who he wants as GECOM chairman were gone.
The Carter-Price formula virtually killed off the Bollers syndrome. This was in the days when President Burnham chose who he wanted to be chairman, and he picked retired judge, Harold Bollers. To me, the Court of Appeal erred badly in not seeing that the Bollers syndrome can remain in disguise if the president can decide who he wants to chair GECOM.
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