Even as the Guyana Bar Association signaled that a Court Order could be obtained to compel President David Granger to comply with a High Court ruling on the process of appointing a Chairman of the Guyana Elections Commission (GECOM), he maintained that preference must be for a judicial person
“While the President believes that the Constitution was crafted the way it was to give preference to the appointment of ‘a person who holds or who 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’, he has never disagreed with acting Chief Justice’s ruling in that the Constitution clearly states that ‘any other fit and proper person’ can be appointed,” the Ministry of the Presidency said.
That is in clear contrast to Chief Justice Roxane George-Wilsthire’s ruling on Monday, July 17, 2019 that both judicial and non-judicial persons have equal weight and that the judicial and non-judicial categories were broadened by the word “any”.
The Ministry of the Presidency rubbished reports that the President essentially shunned the High Court’s ruling, saying that that amounted to a “misinterpretation”.
“Any commentary to contrary is clearly a deliberate misinterpretation. There is no indication that the Head of State ‘dismissed’ the Chief Justice’s ruling, nor that he does not observe the separation of powers between the Executive Branch of Government and the Judiciary,” the Ministry of the Presidency said in a statement on Saturday.
The President had for months maintained that the constitution gives preference for a judge, retired judge or someone eligible to be a judge to be appointed a GECOM Chairman. Last Monday when he was asked whether he still was of the view that the appointee should be a judicial person given the Chief Justice’s ruling states that both judicial and non-judicial should be given equal weight, the President had responded by saying, “I do not believe that anything the Honourable Chief Justice said has diminished my regard for the word and spirit of the Constitution.”
The Ministry of the Presidency statement did not refer to the section of President Granger’s comments in which he signaled that he was not constitutionally required to give reasons for rejecting nominees for GECOM Chairmanship by the Opposition Leader. “If you can show me the article of the Constitution which requires me to give reasons, I will comply with the Constitution but I will not do what the Constitution does not require me to do,” Granger has said.
For its part, the Guyana Bar Association (GBA) said the President is obliged to obey the declaratory orders made by the Chief Justice, based on her application of principles of law. The Association said those orders are “not interpretations or opinions but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.”
The association said legal treatise makes it clear that the refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration. “The Bar Council is confident that, like in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the Chief Justice.”
Bar Association sources said “if there is a failure to abide by the declaratory order, the party adversely affected can apply to the court by way of application to enforce same. Further, it goes without saying, I would think, that in questions on the interpretation of any lawl, the Court, and not the President or any individual, is the final arbiter.”
City businessman, Marcel Gaskin had asked the High Court to interpret the Constitutional provision on the appointment of a GECOM Chairman. He has since given notice of appeal on a section of the Chief Justice’s ruling.