It is not the right of this editorial to assume or usurp the position of the court, especially pronouncing on important legal matters of a constitutional nature that are clearly the proper preserve of the acknowledged learned experts.

This can only serve to create unnecessary controversy, leading to confusion. However, even though it is an unwritten understanding that judicial decisions are generally not publicly criticised, or called into question, it is contended that these should not prejudice the giving of a layman’s view.

The question of the opposition-submitted lists for the President to choose a chairperson for the Guyana Elections Commission (GECOM) featured in the Caribbean Court of Justice’s (CCJ) Judges’ discussions. In fact, it was the subject of one of the appeals, which featured at the Caribbean Court of Justice (CCJ) last week and the subsequently rendered verdict, deciding that the President’s appointment of a chairman to the electoral body had been ‘’flawed and unconstitutional.’’

The President has reacted to this ruling, rightfully so, as it not only called into question his action as head of state but also attacked his credibility, which has been impeccable thus far as leader of this nation.

If one were to follow the statements made by the learned Judges on this aspect of our constitution, there is the unmistakable understanding in their arguments that such a matter should not have reached the Court’s level. In fact, we stand corrected by saying that one of the judges did opine that he did not want to dwell too much on this specific issue of the appointment of the GECOM chairperson, lest it seems to be “intrusive”.

The entire episode of the opposition leader Bharrat Jagdeo-submitted lists was meant to bring about a certain situation. This was the particular intended outcome that Jagdeo deviously plotted, thus paving the way for the political brand of “authoritarian’’ and unfair accusations of “planned rigging of elections” to be ascribed to the President and his coalition government.

It was a standard Jagdeo deception that was one of the set pieces of his party’s grand plan to create an environment of social tension– the “constitutional crises”, as they were also shouting after the No-Confidence Vote of December 21.

It does not take a political analyst to conclude that the lists were all meant to be provocative. One must be reminded that each of the names submitted must be seen to be above partisan politics. In fact, it had been a requirement and responsibility of the Leader of the Opposition to submit a list of names to the President that were not objectionable. On both factors, most would have failed, since virtually all of the submitted names were known to have political allegiances. This is posited, in light of Dr. James Rose and Ryhan Shaw names on the submitted lists as qualified/suitable for the GECOM top job. Guyanese in general would have an extremely different view since everyone knows on which side of the political fence Dr Rose sits; Ms. Shaw, on the other hand, is a well-known Indian supremacist. Of course, it was the constitutional right of the Leader of the Parliamentary opposition to have submitted such a name, among others. But the fact is – the list was a grave insult to the person of the President.

Continuing, there was also the expressed view by the judges that there should have been further consultations between the President and Leader of the Opposition as a means of resolution to a very critical constitutional issue, in terms of finalising a list of six names which the Leader of the Opposition would present for final choice of chairperson.
Most naturally, one may probably want to agree with such a line of reasoning, given its centrality in arriving at a choice that was fully acceptable to both parties. Notably, this would have been the given decision by their Lordships. However, this is a somewhat parallel line of consultation that is not seen in our constitution.

In fact, the President is on public record as outlining the qualities that had to be established, but even after this, the list of unacceptable names continued. But this deliberate act of stonewalling on the part of the opposition leader did not deter the President’s efforts for a common ground on the choice for chairperson. He was seeking consensus, provided that it was in the realm of the Constitution; and he was consistent in this regard. No other time in our country’s history in the search for a chairperson of GECOM did a president exercise so much patience in arriving at a suitable choice and even sought to assist the Leader of the Opposition by giving him a list of the criteria to be found in the nominees.

Of course, there was the argument that the President ought to have provided reasons for his rejection of the 18 persons who were submitted by the Leader of the Opposition, with the judges in the local courts as well as at the CCJ saying that this was good for governance; again, this is not expressed in our constitution. But there is also a consideration that as Commander-in-Chief of the Armed Forces, the President would have been privy to intelligence on all of the nominees that would have guided him in deliberations and reasons for his rejection of the candidates on the lists submitted. Additionally, one could not have had a list that did not afford the President enough scope for deliberation of choice – and this was what Jagdeo set out to do, in his orchestrated plan of continuing to create a perception of a President who wanted to subvert the constitution for sinister motives.

Interestingly, in the High Court ruling that vindicated the President’s decision, the learned Chief Justice did state that the latter ought to have given his reasons for rejection of the other nominees. One should agree with such an opinion, if only in the cause of natural justice. But how does one balance this with the constitutional understanding that the President is not obliged to give reasons for such an action? Besides, had he done so, would those rejected names, in addition to the many vested interests, be prepared to accept the reasons for their rejection?
What must be clearly understood and appreciated, in the context of this situation, is of the President having the responsibility of ensuring that the constitutional processes of Guyana are adhered to, and not breached in any way. And this is inclusive of the process of the choice of chairperson of GECOM. It is evident that the President exercised great patience, in a situation when other leaders in that very position would have balked. Since he had the constitutional right to make his appointment, after rejecting the first list; and a statesman’s maturity, in the face of a high level of disrespect and irresponsibility, because the nation looked to him for a solution to an unfair creation of an impasse, on which he had been expected to act.

In doing so, he activated the Proviso in Article 161(2); and this is in accordance with the Constitution. And here, the question to the CCJ’s verdict of the ‘’flawed” decision of the President is placed under the layman’s microscope – How can this be? And this is fairly engaged, taking into consideration the fact that the President departed from the custom of a single list, in seeking to arrive at a consensus ad idem with the leader of the opposition, who had no such intention. How could he have continued to countenance a situation of continued deception, from an opposition leader who is indeed the guilty party that submitted the “flawed” lists? No constitution must be bended to accommodate a dishonest contrivance, as many seemed to have wanted in the circumstance of the GECOM case.
Of course, one accepts, and therefore respects the decision of the CCJ, since it is our final court of resort. However, one is forced to ask, whether its decision that both the President and the Leader of the Opposition must decide on a list of names, is not a case of judicial overreach on a matter, which ought to be decided by the Guyanese people?

Finally, what if also, the President, in his deliberate judgement, deems the new names to be unacceptable, and decide to give reasons, as seem to be judicially ruled – would his reasons be accepted by the contending parties, and the general public, especially those with particular vested interests? Of course, given the President’s known penchant for fair play, he will support his reasons.

We, therefore, in the circumstances must support the President’s reaction to the verdict, in reminding the press last week that he “…always operated within the ambit of the Constitution.” And that his appointment of a Chairman of the Elections Commission would only be a “fit and proper” person in accordance with the definition laid out in the Constitution. We restate his words here: “I have never gone outside of the Constitution. If they felt that the process was flawed, they must let me know what the flaw is.”