Jagdeo has been dismissive of President’s advice

Dear Editor,
PERMIT me to comment briefly on the present stage of the constitutional process for, and of, the appointment of the GECOM Chairman. The President having rejected Mr Jagdeo’s first list of six nominees, the Leader of the Opposition (having requested and being furnished with advice as to the President’s advised interpretation of the characteristics/qualifications of the GECOM Chairman pursuant to Article 161) has submitted another list of six (6) nominees: Waldrond (Attorney–at–law), B.S Roy (Retired Judge), Gouveia (Businessman/Pilot), Sagar (Socio/Politico activist), Ramlall (Retired Judge), Khan (Attorney-at-Law). It is public knowledge that Anil Nandlall (PPP/C–MP and Attorney-at-Law) is Mr Jagdeo’s spokesperson on constitutional matters. In a published letter criticizing the President’s advice/clarification as requested by Mr Jagdeo, this is what Mr Nandlall wrote: “It is quite ironic that the Leader of the Opposition (LOO) requested of the President clarification, instead he received a maelstrom. In the end, even God may not now qualify to be Chairman of GECOM” (KN Monday, March 27, 2017 under caption “President trying to rewrite this article of the Constitution). This might suggest to an objective, officious bystander like myself that Mr Jagdeo has been dismissive of the President’s advice, at worst; or, at best, been defiant of the advice. The result is that, as it appears to me, the LOO has with persistent obstinacy submitted a list that he knows is flawed and would not be (in the words of the Constitution itself) “… not UNACCEPTABLE TO THE PRESIDENT…” (article 161(2)).
Editor, constitutional interpretation can sometimes be a difficult and esoteric matter. But, there can be nothing difficult or esoteric about the plain, simple, English words: “not unacceptable to the President.” A primary school student would understand them to mean that ALL SIX (not, 1, 2, 3, 4, or 5) MUST BE ACCEPTABLE to the President; and, so that out of, or from among those six acceptable as options, the President would choose one. There must be a very cogent and purposive arithmetical reason why the Constitution makers required six names to be submitted for the President’s choice. The option of six acceptable names cannot be reduced to one or even five; and yet be six! An analogy in criminal law process might help to elucidate the point. Consider the analogy of a defendant having in criminal trial process a right to three options out of which he/she is entitled to choose or elect one when asked to lead a defence : (1) giving sworn evidence (2) making an unsworn statement and (3) remaining silent. It is the defendant’s entitlement to choose or elect one of those three options. So put as would amount, in point of law, to everyone of those three options, for the defendant’s election of one. In courts, entire criminal proceedings can, and has been vitiated for failure to so put those options. I would submit that similarly, a failure by Mr. Jagdeo to have a list with all six options meeting or satisfying the constitutional requirements of article 161, for the President’s choice or election of one has an equal vitiating or invalidating effect. I ask this lawyer’s question: can Mr. Jagdeo, constitutionally, submit a list of five(5) nominees? Not at all. And, this is so, even if all five were acceptables. So, constitutionally, the LOO’s list is rejectable if ex post facto (ie alter its make and submission) it is found by the President to be a mixed list of acceptables and non-acceptables. From my position, what I think or say (whether benevolently or malevolently) about any one of these six nominees is of no political significance or relevance in this appointment process. But as devil’s advocate, I could not leave unquestioned the taunting (almost duping) nomination of Walrond, who Mr. Jagdeo should have been advised by his legal adviser/spokesperson was automatically disqualified by association, by marital relationship, with the lead counsel (and presumably the intellectual author) in what is popularly known as the “Jagdeo Third-Term” candidacy case. Nor, could I leave unquestioned Ramlal’s nomination as his medical unfitness is seriously called into question. Nor, Gouviea’s as his pro-PPP/C groundings (as it were) seriously brings his requisite impartiality for chairmanship into question. A mere perception by the President of any negative factor as regards any one of those nominees is a sufficient constitutional basis for disqualification. Moreover, the President can resort to any material or information (even hearsay) for that purpose; and, no reasons for disqualification has to be given by the President. Under article 161, acceptability is left entirely to the President’s evaluation and assessment, deploying and using all the official investigative facilities and sources at his disposal. Due diligence in the exercise of this appointment function might suggest that even a nominee within the “Judge” category might be investigatable. The story is told of Lord Chancellors and Chief Justices in England’s vaunted judiciary who were dismissed for bribe-taking and other forms of corruption (the learned reader is referred to the Barnwell case (1993)49 WIR 96 at page 98). Another reason for the President’s justification for utter due diligence and circumspection about Mr. Jagdeo’s nominees is, ominously, this: the chairman’s instrument naming a Presidential candidate as having won the presidency, is constitutionally conclusive evidence of his/her election in any court (article 177(6) invoked by Bernand, CJ in the case of – Application by Aubrey Norton for writs of Certiorari and Prohibition (1997) – concerning the highly controverted 1997 General Election). As I reflect now on that tumultuous election, I have to say that the real reason was the highly questionable acts and omissions of the then Chairman Doodnauth Singh (I recall that Guyanese had even coined an epithet – “Rignauth Singh”). The President being a keen practitioner of history cannot be oblivious to the lessons of that history. For as I fear, if he does, I daresay that history will not judge him kindly. So, it is not only of some importance, it is of paramount importance that President Granger be respectfully invited to pursue standards (even if unprecedented) in his appointment of a GECOM-Chairman. There is no question of any violation of any citizen’s fundamental rights (as Nandlall argues). The simple rebuttal to that argument is that no citizen (no matter how pro democracy their activism may be) has any fundamental right to be appointed GECOM Chairman.
I end this short letter with a poignant reminder to Mr. Jagdeo and his legal adviser that article 111(1) of the Constitution provides that in the exercise of such function as to appoint a GECOM Chairman from among the six nominees submitted to him, the President “shall act in accordance with his… own deliberate judgment…” as to whom he finds acceptable or unacceptable. I, for myself, interpret Mr. Jagdeo’s second list submitted in plain defiance of the President’s clarifications, as an illegitimate pressure to coerce the President into accepting his (Mr. Jagdeo’s) own self-interest policy of selection, on Mr. Jagdeo’s own terms and criteria. That cannot be right. And, Anil Nandlall’s misapprehension, miscomprehension and confusion about the clarifications are all self-induced.

Yours truly
Maxwell E. Edwards
(Attorney– At–Law)

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