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Court of Appeal dismisses challenge to constitutionality of GECOM Chairman

The Guyana Court of Appeal on Thursday unanimously upheld a High Court decision that President David Granger acted constitutionally in unilaterally appointing Retired Justice James Patterson as Chairman of the Guyana Elections Commission ( GECOM).

Attorney-at-Law, Anil Nandlall said he would be appealing the decision to the Caribbean Court of Justice (CCJ).

Justice Dawn Gregory said, in her judgement, that the 18 nominees from three lists of six names should have been used as the basis for the President and Opposition Leader to arrive at consensus through an agreed mechanism. She noted that after the amendment of the 1980 constitution in 1995 to entrench a bipartisan Commission that was used in 1992 was an evolution of the process to one of consensus to achieve a balance.

‘The submission of a list, never mind 18 names and three lists, but without the engagement on their acceptability, separate from the choice, could not have led to a consensual candidate,” she said, adding that “the manner in which the lists were submitted was not reasonable. The President could not have been expected to make a choice without some engagement on the names and the CVs and the various characteristics that he had put in place; there had to be that engagement.”

The mere submission of a list, she said, did not mean the President should pick one of the nominees. Therefore, she said the President had a right to unilaterally appoint someone from the judicial category in the absence of a consensus and after a prolonged period of eight months.

Justice Barnes said ultimately it is the President who determines who is fit and proper and who is not unacceptable to him from among those nominated by the Opposition Leader.

Similarly, Justice of Appeal Rishi Persaud said there was nothing to suggest that the President acted unconstitutionally, illegally or unreasonably in appointing Justice James Patterson. Persaud said it was envisaged that a judge would be impartial. While there was need to guard against an interpretation is “wholly undesirable”, Justice Persaud said the President could not be mandated to choose from a list because that could lead to an “unreasonable fettering of his discretion”. “That could possibly lend itself to politicking, abuse by one …Again 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,” Justice Persaud said.

Chancellor of the Judiciary, Justice Cummings-Edwards said the judicial category of judge, former judge or someone eligible to be a judge was expanded by “any other for and proper person” and so creates a “wider pool of persons” to be submitted by the Leader of the Opposition to the President and deemed “not unacceptable”.

She also upheld the High Court’s decision that the President rightfully appointed Justice Patterson as GECOM Chairman.  Touching on the issue of reasonableness on the part of the President in analysing the lists that were submitted, she said that must be done on the basis of the “reasonable man’s test”.  She agreed with submissions by Nandlall that President Granger could not reasonably reject an entire list. “If one person or two persons on the list is found to be not 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 more than half of the list is found to be not unacceptable, the list is good,” she said.

President Granger in October 2017 had unilaterally chosen Retired Justice James Patterson for the post of GECOM Chairman, after rejecting a total of 18 names contained in three lists that Opposition Leader, Bharrat Jagdeo had submitted to him over the past 10 months.

Referring to the selection of previous Chairmen of the Guyana Elections Commission from lists provided by the Opposition Leader,  the Chancellor of the Judiciary said “this has to do with the exercise of the discretion of the particular President in each of those cases”. They each saw it fit to choose from the list, as provided for, in keeping with the approach to the amendment of Article 161(2) of the Constitution.”

The Chancellor of the Judiciary believed that the President should have appointed someone from the judicial category after he had found the first list to be unacceptable instead of going on to accept two other lists.

PPP Executive Secretary, Zulficar Mustapha had immediately filed a High Court action asking that the be quashed because Patterson was allegedly biased and the Guyanese leader violated the Constitution by picking him.

But in June Chief Justice Roxane George-Wiltshire had ruled in June that the President can rightfully ignore the Opposition Leader’s nominees for the post.

Mustapha appealed the decision to the Guyana Court of Appeal to scrap the entire decision and instruct President David Granger to pick one of Opposition Leader Bharrat Jagdeo’s 18 nominees contained in three separate lists.

Led by Attorney-at-Law, Anil Nandlall, the legal team contended, among other things, that George-Wiltshire erred and misdirected herself by failing to call into the question Granger’s decision to appoint Retired Justice James Patterson as GECOM Chairman although she said the Guyanese leader should have given reasons.

Mustapha had said Granger’s unilateral decision would upset the delicate balance in choosing someone who is respected by both sides