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Pandora’s Box: Requesting new list of GECOM nominees a dangerous precedent

by Vivian Williams, Esq. LLM

President David Granger

When Guyana’s President David Granger requested a second list of nominees for Chairman of the country’s Elections Commission (GECOM) from the Leader of the Opposition, he extended an olive branch and created a dangerous precedent. The submission of a list of nominees is a one-shot deal. The Constitution does not provide for the submission of a second list. It contains a provision for the President to make a unilateral appointment if a list of “fit and proper” nominees, not unacceptable to the President is not submitted. Mr. Granger found the list submitted to him unacceptable, apparently concluding it does not meet the “fit and proper” constitutional requirement. This should have triggered the provision authorizing the President to move forward and unilaterally appoint a Chairman.

Misconception and the Olive Branch

There is a misconception that the Constitution provides for a second list to be requested. It gives no such authority or discretion to the President.  Take a look at what the Constitution states:

… if the Minority Leader 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…

The use of the word “shall” instead of may should NOT be glossed over. When the word Shall is used in legal instruments, it serves as a command that takes away discretion. On the other hand, “may” confers a discretion. If the architects of the Constitution wanted to confer a mere discretion, they would have used the word “may”. They instead inserted  a command, which President Granger did NOT follow in this case.

Attorney-at-Law, Vivian Williams.

The Constitution gives the President two consecutive options. First, the President is obligated to make a finding on whether the List satisfies the constitutional requirements. If it does, he is obligated to appoint a Chairman from one of the nominees. If the List does NOT satisfy the constitutional requirements, then the Constitution instructs the President to unilaterally appoint a Chairman. There is no provision for the President to rewind the process by requesting a new list. Though this  olive branch reflects consideration of the rancid  political reality in the country, it is a frolicked departure from the Constitution.

Pandora’s Box: Requesting New List is a mistake

The request for a new list opens a pandora’s box and sets a dangerous precedent. There is now an expectation that if an obnoxious list is submitted by the Opposition Leader, an opportunity would be provided to submit a new list. This could lead to abuse by an Opposition Leader who may use the initial List to test the President and create confusion. Future denial of an opportunity to submit a new list would also cast the sitting President in a bad light. There is also the issue of when the President could invoke the authority to unilaterally appoint a Chairman. If he finds a second list unacceptable is he obligated to request a third?

In light of the political climate in the country, President Granger’s hesitance to invoke the power to unilaterally appoint a Chairman is commendable but his approach is imprudent. Instead of rejecting the List and requesting a new one, the President should have offered the Opposition Leader an opportunity to withdraw the list and submit a new one. The withdrawal would have forestalled the constitutional command to unilaterally appoint a Chairman by putting on hold, the rejection of the list. In this way Mr. Granger would have achieved the goal  of extending an olive branch and demonstrating good faith and awareness of the political sensitivity of the matter without acting in contravention of the Constitution. Failure by the Opposition Leader to accept the offer should have then resulted in a rejection of the List and unilateral action by the President.

The olive branch could have been a strategic play that puts the Opposition Leader on defense and keeps the focus on the quality of the list he submitted. It was an opportunity for the President to control the narrative. Instead, he is allowing his opponent to frame the issue and influence public opinion. The Opposition Leader has managed to shift atttention from the quality of the list submitted to the Constutionality of the  President’s action. His chief legal advocate, Anil  Nandlall, has pounced on this opportunity. The former Attorney-General is now making a presumptuous claim without any resistance from the Granger government. Here is what he is asserting in his own words:

“The Constitution speaks only to one list. A list of six names. A list of six names has been submitted, so the constitutional requirement in terms of a list has been met. What the President has rejected are the six names so six new names have to be supplied to be placed on that same list. For the purposes of the proviso which states that in the event that there is no list that the President can act, that Proviso cannot be triggered in this instance because there is a list:”- Anil Nandlall

Mr. Nandlall’s assertion that the President can only act unilaterally if NO list is submitted, is a very poor reading of the Constitution. The triggering condition for unilateral action by the President is failure to submit “a list as provided for“. What is provided for is not just a list of names but rather a list of “fit and proper” nominees, not unacceptable to the President. Nandlall is in La la Land dreaming that the Leader of the Opposition could keep providing names that are unacceptable and the President would be obligated to request new names. It would be prudent for him to advise his client to walk carefully on the olive branch extended to him. In a previous article I outlined why Mr. Nandlall, a fierce legal advocate, is  Dancing on Black Ice with his client.

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Vivian M. Williams is a New York State and Federal attorney who dedicates lots of attention to privacy and media law matters. For consultation on privacy and media law related matters call 212-561-5312 or email info@vivianwilliamspc.com  follow on twitter @ https://twitter.com/VMWLAW

You can read Mr. Williams’ other blog posts at http://vivianwilliamspc.com/legal-services-attorney-new-york-city-vivian-williams-pc/

 

  • Horace

    The President should call this guy and offer him the job as Attorney General of Guyana. This guy will also make good future young leader of the PNC. They should try and recruit him.

    • Col123

      Yea.. he is exhibiting ethnic qualitative superiority as a Mandingo caste just as some of them in the PPP, PNC and AFC…he gon make a good representation of the kabaka!

      • Horace

        I agree. I saw the traits of Kabaka as clear as crystal.

  • Kassem_B

    No need to look deep Mr Williams, the rejection was all political and the Constitution was used as an excuse to keep pot boiling and the extremist happy for a while until I feel safe.
    Now I have to find a way out but not to lose face.

  • Kassee

    What is the motive for this piece.? Is this person saying that the present A.G. does not know the constitution too.?

    • rs dasai

      K
      They all know what the Constitution requires and mandates, but the APNU/AFC et al, are trying to legally fool the Citizens in believing that a second list is ‘required’ when no such is. The Administration has dug itself into a DEEP hole and does not have a plausible answer as they do not want to appoint even Mr. Chris Ram who exceeds the requirements in all aspects.

  • Celebrate50+RacismBackwardness

    nansense – a 3rd or 4th list may be required if necessary

  • Col123

    A lot of legal dung, invalid fact and double speak from this young lawyer. How on earth does he know that the President ” extended an olive branch “… the President is playing politics.. period . The issue of precedent does not fit in an impending dictatorship…. it simply means that the President can do what the hell he wants… the constitution is not worth the toilet paper on which it’s written.. stop beating about the bush Mr Williams…. stick with your bs in NY.

    • rs dasai

      Col
      Very mildly put.

  • rs dasai

    Providing a second list is more dangerous and belittles those on the original list. It will also indicate that the PPP is being played and not taken seriously. Beware of such a move.