…as Appeal Court upholds appointment of GECOM chair
…says President could have activated proviso after first list
THE Court of Appeal on Thursday unanimously upheld the ruling of Chief Justice (ag), Roxanne George-Wiltshire that President David Granger’s appointment of Justice (ret’d) James Patterson as Chairman of the Guyana Elections Commission (GECOM) was constitutional and even suggested that on the first instance of a defective list, the Guyanese leader could have activated the proviso which allowed him to select someone unilaterally.
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.”
Commentators had argued that a number of controversial figures were on all of the lists submitted by Opposition Leader, Bharrat Jagdeo, including Indian rights activist, Ryhan Shah and former PPP elections candidate, Dr. James Rose, among others.
Thursday’s decision in the Appeal Court would have dealt another blow to the opposition’s efforts to overturn the decision. “We were always convinced that under the constitution, the President has the right to appoint the chairman from a list of six persons and, insofar as the President finds that the list is unacceptable, then he can properly reject the list and that has happened three times and the court has arrived at the decision that the President acted constitutionally and lawfully,” Attorney General Basil Williams, SC, said in an immediate reaction to the ruling.
The unanimous decision was arrived at by Chancellor of the Judiciary (ag), Justice Yonnette Cummings-Edwards and Justices Dawn Gregory and Rishi Persaud after several days of arguments and deliberations on the case brought against the AG by People’s Progressive Party (PPP) Executive Secretary, Mustapha Zulfikar Mustapha. Mustapha was represented by former Attorney General Anil Nandlall.
At first list
Justice Cummings-Edwards said that the proviso should have been activated by the President upon the rejection of the first list. The proviso, to which she alludes, states, “Provided that if the Leader of the Opposition 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.”
However, in addressing the issue of “not unacceptable,” Justice Cummings-Edwards said it is her respectful view that the “reasonable man’s test” be applied in this regard, explaining that if a reasonable person can view the list of candidates as acceptable, then one passes the test.
“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,” the Chancellor explained.
Given the fact that the President has discretion in the circumstance, the Chancellor said, he can choose from the list whether it is the whole list or part of the list, once those persons on the list are not unacceptable to him. As agreed by the Chief Justice, Cummings-Edwards said that the President may or may not select persons from the list in the exercise of his discretion; however, he must act reasonably. “So while the President can act in his own deliberate judgment, he should consider an objective way when persons on the list are not unacceptable to him,” she posited.
For her part, Justice Gregory examined several elements of the case, including the intention of the framers of Article 161 (2) of the Constitution, which highlights the role of the Leader of the Opposition in the process of identifying and appointing the Chairman of GECOM by the President. Under that article, the Chairman of GECOM must be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly. That person ought to be a current judge, a former judge, someone who is qualified to be appointed as a judge or any other fit and proper person. Leader of the Opposition, Bharrat Jagdeo, in 2017, submitted three lists with six names each, all of which were rejected by President Granger. In delivering her decision, Justice Gregory endorsed the position held by the Chief Justice (ag) that one list with six names was contemplated by the framers of the article. The Appellate Judge said while Opposition Leader Bharrat Jagdeo submitted three lists with six names each, he should have engaged the President prior to the submission of the list to give rise to consensual appointment as intended by the article.
“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,” Justice Gregory explained.
The Appellate Judge made it clear that the decision of the Opposition Leader to submit three lists with a total of 18 names without engaging the President on the issue of acceptability would not have led to a consensual appointee, positing 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,” Justice Gregory said while adding that “what was sent to the President– three lists– should have been the subject of engagement and not a request for him to choose a name at the same time,” Justice Gregory emphasised.
Turning her attention to the proviso, which is included in Article 161 (2) of the Constitution, Justice Gregory said that the President could not have been faulted for activating it following the rejection of the list for a third time. It was noted that the President in his final rejection, explained to the Leader of the Opposition that the process had taken a period of eight months (January to August, 2017), and the delay in the appointment of the Chairman of GECOM, in the interest of the public, could not have continued. “In my mind, the activation of the proviso, although it was not ideal as contemplated by the framers, in that the framers wanted consensual candidates, the resorted proviso could not be faulted,” Justice Gregory said.
Taking into consideration the explanation given by the President, the Appellate Judge said that “the resort to the proviso was not unlawful or unconstitutional in the circumstances of the case as outlined in the letter,” as she dismissed the appeal.
In his decision, Justice Persaud said while it would appear that the President and the Leader of the Opposition strove to arrive at a consensual appointee in keeping with Article 161 (2), the subsequent submissions of names by the Leader of the Opposition may have been as a realization, on his part, that the names submitted may not have been in keeping with Article 161 (2). “There is nothing on record to suggest otherwise,” Justice Persaud posited.
Referencing again to the article, the Appellate Judge said that the six persons identified on the list submitted to the President by the Opposition Leader must be chosen from the identified categories, and must not be unacceptable to the President. He stated that anything outside of that would be a failure on the part of the Leader of the Opposition to submit a list as provided for in the Article. Justice Persaud noted, however, that this could only be achieved by meaningful engagement characterised by good faith.
The Appellate Judge said too that it is “wholly undesirable” that a President must choose from a list of which one or two or three persons, as the case may be, are not acceptable to him. “It would be an affront to the spirit and intention of the framers, and unreasonable fettering of his discretion,” he said. It was noted too by the judge that President Granger was guided by the ruling of the Chief Justice in the Marcel Gaskin case. Gaskin, a private citizen, had asked the High Court to provide an interpretation of Article 161 (2) of the Constitution as it relates to the selection of a Chairman for GECOM.
In her ruling, Justice George-Wiltshire advised that there is no legal requirement for the President to state reasons for rejecting a list, though it is her belief that in the furtherance of democracy and good governance, he should, to facilitate dialogue and compromise. Justice Persaud, like the Chief Justice, believes that the appointment of Justice Patterson as Chairman of GECOM by the President is constitutional. “We have perused the records here, and to my mind, there is nothing to establish that the President actions may have been unlawful or unreasonable,” he said while noting that the appointment of a former judge, in the person of Justice (ret’d) Patterson, is intended to result in a state of impartiality and fairness.
“As one who has held such high a constitutional office and falls within the four categories of persons contemplated by the framers of the Constitution, the question of the appropriateness of his appointment and constitutionality of his appointment is misguided,” Justice Persaud said as he joined with Justice Gregory in dismissing the appeal.
Ahead of handing down the ruling, the Appellate Court had dispelled the arguments put forward by the Attorney General that it had no jurisdiction, sitting as it is, to hear the appeal against the ruling of the Chief Justice. The Attorney General was supported by Barbadian Queen Counsel Hal Gollop and Ralph Thorne and Solicitor General Kim Kyte-Thomas.