Lawyers for a city businessman seeking an interpretation of the country’s constitution on the appointment of a Chairman of the Guyana Elections Commission (GECOM) will have to decide on future legal action if the President and the Opposition Leader decide on someone contrary to what the High Court may view as the intended meeting.
Businessman, Marcel Gaskin wants the High Court to declare whether the list of nominees to be submitted by the Opposition Leader must include a judge, a retired judge or a person qualified to be a judge. Gaskin has said his lawyer has told him that the already rejected list meets Guyana’s constitutional requirement because the words “fit and proper person” must be read as having no connection to the previous categories of persons.
Chief Justice, Roxanne George- Wiltshire was expected to offer her interpretation on Monday, but instead she set the next court date for June 16, 2017 to allow lawyers for the State to study latest submissions made by Gaskin’s lawyer, Glen Hanoman. The Court wants copies of the Law Reports containing a number of the cases cited as well as clarifications on a number of areas. The Chief Justice indicated Monday that she also wants to ask the lawyers a number of questions.
Hanoman’s response to Attorney General, Basil Williams’ latest submission was only dispatched to the Chief Justice Monday morning and served on the Attorney General.
With the next court date fixed for four days after President David Granger and Opposition Leader Bharrat Jagdeo are due to meet on June 12, 2017, Hanoman said if the two top political leaders’ reach agreement that is against a High Court ruling he would examine other options.
“If they act in contravention of a court ruling certain other legal steps could be taken,” he said when asked by Demerara Waves Online News. He explained that the matter is not a contentious one with a penal clause against a party who disobeys the ruling. “Once this Court, the Chief Justice has given an interpretation (and) if the Executive acts contrary to what the Court has said, I suppose it would be bad for optics,” he said.
Attorney-at-Law, Christopher Ram was not perturbed by the delay in receiving the Chief Justice’s interpretation. “It would have been good to have an early decision but the Court had sufficient reason to set another date. I believe the Court is very mindful of the importance and the time-sensitiveness of the decision,” he said.
Ram believed that the Executive would not disregard the Court’s ruling on the matter. “I think the Executive will pay deference to any judgment of the Court so I am not too concerned on that score,” he said.
The Attorney General’s Senior Legal Adviser argues that where the candidates submitted by the Opposition Leader contains a sitting judge or former judge, it was mandatory to consider those two nominees first before considering the others which are optionally under the rubric of a “fit and proper person”. She said said it is for the president to consider the others at his discretion to determine who is a fit and proper person. “It is respectfully submitted that where the Executive President of the Cooperative Republic of Guyana determines that no listed person is fit and proper to appoint, his discretion cannot be challenged,” Noble added. She further argues that where the President has studied the list sent to him by the Opposition Leader and noticed that no single nominee on the list has satisfied the requirement of mandatory qualification, he can resort to the alternative qualification which gives him discretionary powers in considering the list. “These very wide discretionary powers include the power to reject the list in its entirety,” said Noble.
The Attorney General’s submission contends that Gaskin does not have any locus standi (the right to bring an action) because he has no “relevant interest” in the matter to the extent that a contravention of the constitution, “as he alleges,” is one of that affects his interest. “The applicant instituted proceedings for declaratory orders, not as a person who has direct personal interest in the appointment of the Chairman of the Guyana Elections Commission, but merely as a citizen of Guyana. As such the applicant may be regarded as a meddlesome busy body and not a public benefactor,” states Senior Legal Adviser to the Attorney General, Leslyn Noble on behalf of Williams.
Gaskin’s lawyer, Glen Hanoman, in his submission, states that Section 5 of the Interpretation and General Clauses Act states that the words “or” and “other” should be construed disjunctively and not as implying similarity. Against that background, he says “or any other fit and proper person” does not necessarily include a person with the requisite qualifications and characteristics of a judge. Gaskin concluded by pointing out that “it should be noted that subsequent to the implementation of the Carter Formula, only one would have undoubtedly been chosen within the category of” any other fit and proper person.”
Representing the second named respondent- Opposition Leader, Bharrat Jagdeo- Attorney-at-Law, Anil Nandlall said nothing in the constitution expressed or implied requires the President to submit a list that includes a judge, a former judge or someone qualified to be a judge. “We further submit that when one examines the predecessor provision of the said Article of the Constitution, it only provided for the aforesaid categories of persons to be appointed. It was specifically amended to enlarge that category and to include “any other fit and proper person.”
Nandlall, a former Attorney General, states that “absolutely nothing” in Article 161 (2) of the Constitution establishes any order of preference in relation to the qualifying criteria for eligibility for appointment attaching to the names of the six persons in the list to be submitted by the Leader of the Opposition to the President. “If it was intended that there should have been such a preference, the draftsman would have made that pellucid and not leave it to the Attorney General to give Article 161(2) that meaning,” he added. He stressed that that provision merely establishes three categories of persons who may be considered eligible for the appointment of a GECOM Chairman- a judge, former judge or a person qualified to be a judge or any other fit and proper person- in no preferred order.
“The category of “any other fit and proper person” mentioned in Article 161(2) must be construed disjunctively. The Constitution creates no preferential order among these categories of persons. Each category is mutually exclusive and merits independent consideration. In other words, the list submitted by the Leader of the Opposition could be comprised of six judges or six former judges, six persons qualified to be a judge or six fit and proper persons,” Nandlall argued.
While acknowledging that the President is not expressly obliged for giving reasons for deeming a list unacceptable, the former Attorney General contended that several rulings in other countries state that the provision of reasons is a hallmark of good public administration. ”
Nandlall also rejected President Granger’s position that all six of the names must first be acceptable and then he would select one to be appointed GECOM Chairman. “In short, the President is free to reject a name or indeed five names and find the sixth person as acceptable or not unacceptable and he would have complied with the spirit of the Constitutional prescription. To interpret the provision as requiring the President to first find all six names not unacceptable and then for him to chose one is an interpretation that would be too “a narrow and technical construction and not a “large and liberal interpretation”.
He said one could not discount that the framers of Guyana’s constitution had taken into consideration the smallness of Guyana’s population and “the narrowness of the pool from which these six persons are to be chosen.”
On the question of fit and proper, Nandlall dismissed the Attorney General’s view that the Constitution provides that it is the President who determines whether a person is fit and proper. “I submit that the Constitution does no such thing. The Constitution resides in the President a discretionary power to determine whether the persons are unacceptable or not; whether they are fit and proper person. Whether a person is fit and proper is to be objectively determined having regard to the context and circumstances which are under consideration,” he said.
Hanoman referred to Section 18 (1) of the High Court Act to state that the High Court, in its original jurisdiction, shall hear every action and proceeding and all business arising from written law. On whether the businessman has the right to bring an action in court, Hanoman said, “I would submit that the fact that Mr, Gaskin is a citizen of Guyana and that his name appears on the electoral list of the Guyana Elections Commission, he is most definitely a person with a relevant interest in the affairs of the appointment of the Chairman of GECOM is a matter of national interest, particularly to all citizens entitled to vote in the country’s elections and it may ultimately affect how his country’s democracy is exercised,” he said.
The Court has already ruled that the applicant has jurisdiction and has continued to consider the matter.
The President has already rejected two lists of nominees submitted by the Opposition Leader.