RETIRED Judge of the Caribbean Court of Justice (CCJ) believes that the decision made by President David Granger to reject the list of nominees to serve on the Guyana Elections Commission (GECOM) by Opposition Leader Bharrat Jagdeo is well founded.In a letter to the Editor, Justice Pollard who is a one-time nominee for the position outlined why the President’s decision to reject the list of nominees which included controversial Indian rights activist, Rhyaan Shah, Professor James Rose, Human Rights and Conflict Resolution Consultant, Lawrence Latchmansingh; business executive, Ramesh Dookhoo; former chairman of the Private Sector Commission, Norman Mc Lean; and Chartered Accountant, Christopher Ram was a good move.

The distinguished jurist in his missive said the intent of Article 161 (2) of the Constitution of Guyana is to “secure impartiality and even-handedness in the appointment of the Chairman of GECOM.”

Article 161 (1) of the Constitution makes provision for the Elections Commission which consists of a chairman who is to be a full-time chairman and who should not engage in any other form of employment, as well as other members. Subsection 2 of Article 161 says, “Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be 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 judge, or any other fit and proper person, to 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.”

In light of the aforementioned provisions of the Constitution, Professor Pollard said that in context the criteria that are applicable for selection is a judge with specified experience, a person who is qualified to be a judge or any other fit and proper person. “The employment of the pronoun “other” speaks volumes and must be interpreted to mean that such “other fit and proper person” must possess the characteristics of the two-named preceding persons. In effect, such person must possess the generally accepted distinctive characteristics of a judge, namely, autonomy of decision-making, considerable jurisdictional reach, impartiality, integrity and the disposition to act judicially,” said Justice Pollard.
He submitted that by virtue of that which has been expressly stated in the constitution, President Granger must be provided with nominees, who at the very least meet the criteria outlined by the supreme law of the land. “In effect, if he is to make a fair and balanced choice he must be given in equal number persons possessing the attributes described above and in the present circumstances two persons from each category.”

In the case of the rejected nominees, none would have met the criteria set by the Constitution; Rhyaan Shah was the co-founder of the now defunct and divisive Guyana Indian Heritage Association (GIHA), which the then PPP government had neutralised by creating the Indian Arrival Committee, now renamed the Indian Action Committee while, Latchmansingh is the former Programme Manager, Social Cohesion Programme, United Nations Development Programme (UNDP) Guyana. Since May 2003, Latchmansingh has managed activities to build local capacities for the peaceful resolution of disputes and promote the rule of law and democratic governance. Meanwhile, Chartered Accountant Ram who is also an attorney and former head of the Bar Association has worked for many years with the local Elections Observer Bureau and has been an outspoken critic of both the former and present governments. He was recently hired as a forensic auditor by the current government.

Former Chairman of the Private Sector Commission (PSC) Ramesh Dookhoo was also identified by the Opposition Leader as a potential candidate for the chairmanship at GECOM. He is a business executive and has worked closely with former President Bharrat Jagdeo, now Opposition Leader.

Another of the candidates put forward by Jagdeo was retired Chief-of-Staff of the Guyana Defence Force (GDF). He worked with the former administration, and served as a member of the Presidential Commission of Inquiry that had cleared former Minister of Home Affairs, Ronald Gajraj of involvement in extra-judicial killings by the Phantom Squad.

McLean also served as both Commissioner of Police and Chief of Staff of the GDF during the Forbes Burnham presidency. Since the early 1990s, McLean has been Human Resources Manager of Omai Gold Mines, a subsidiary of Canada’s Cambior Inc. Back in 2009, he and his wife, Evelyn Sita Ramlal, were charged with four counts of conspiracy to defraud when they appeared before Acting Chief Magistrate, Melissa Robertson at the Georgetown Magistrates’ Court and were granted bail totalling $850,000.

It was alleged that on December 10, 2004 and March 18, 2009 at Georgetown, with intent to defraud, Ramlal and McLean conspired with each other and person or persons unknown to forge an adoption order with respect to a girlchild, purporting to show that the said adoption order was issued on December 14, 2000 knowing same to be false. However, in 2011 the case was dismissed by Magistrate Fazil Azeez. Azeez had found that a prima facie case had not been made out against the defendants and so the charge levelled against them was dismissed.

An assessment of the qualifications of the six nominees, Justice Pollard posited illustrates that “the list submitted is palpably defective in omitting persons qualified as judges or possessing requisite qualifications to be appointed as such.”
He continued: “And it is submitted that the President was correct and principled in characterising the list as unacceptable.”

The Opposition Leader has said he wants the CCJ to interpret the law on the appointment of a GECOM Chair; a move Justice Pollard said is not surprising. At a press conference last week, Jagdeo said the President’s interpretation of the law is wayward, noting that the inclusion of “or any other fit and proper person” was aimed at broadening the category from which the GECOM Chairman could be nominated and thereafter appointed.

“The President said the Constitution is quite clear and it is clear to me too, that outside of judges, others can be appointed to the post,” Jagdeo said.
He argued that practice has shown that his interpretation is not flawed as several past presidents including Desmond Hoyte, SC, had submitted four lists comprising individuals who were not judges or did not have the qualifications to become a judge.

The Opposition Leader reminded that President David Granger himself had accepted nomination by Hoyte, even though he (Granger) was not from the legal fraternity.

Notwithstanding those arguments, the President maintains that he will follow the guideline set by the Constitution.
“So the point is, even if the Constitution had been breached, or a nomination been made in breach of the Constitution — 10 or 20 years ago — there is no need to repeat it, so that’s not a precedent. I am accepting now as President that the constitutional provisions must be applied,” the Head of State said subsequently.

Jagdeo has since written President Granger requesting an explanation on what constitutes “fit and proper” and has also requested a meeting with the head-of-state.