This is the first part of the submission of the Attorney General and Legal Affairs Minister Basil Williams in response to Businessman Marcel Gaskin’s proceedings in the High Court seeking an interpretation of Article 161(2) of the Constitution of the Guyana.
Last week Chief Justice (ag) Roxanne George-Wiltshire made her ruling in the case.
In Gordon v Minister of Finance and Others (1968) 12 WIR 416, Bishop J., at page 419: It seems clear to me from a consideration of these subsections that, firstly, it is not just any person who makes an allegation of a contravention of the Constitution of the State who has the right of application to the High Court.

This right is specifically conferred upon a person with a relevant interest– not just an interest, but a relevant interest. Further, a person is to be considered as having a relevant interest if the contravention which he alleges, is a contravention that affects his interests. (It is not his interest in or concern over the matter.)
It has not been disputed, and I share the view, that the onus rests on the applicant to establish to the satisfaction of the court that he is a person who is qualified under the subsection, and unless he proves his qualification then his complaint cannot be entertained by the court. In other words, the applicant must prove that such contravention of the Constitution as he alleges, is one which affects his interests.(emphasis added)
In the case of Hughes et al v the Attorney General of Guyana [2001] LRG 87 it was held that:

The current proceedings concern the Plaintiffs’ contention that their fundamental right to be heard was violated. It is a matter between them and the State, to which the intervention of the Applicant is neither necessary nor instrumental.
The Applicant instituted proceedings for Declaratory Orders NOT as a person who has and direct personal interest in the appointment of the Chairman of the Guyana Elections Commission, but merely as a citizen of Guyana, as such the Applicant may be regarded as a meddlesome Busy Body and not a public benefactor. The Applicant has not established sufficient direct interest in the appointment of the Chairman of the Guyana Elections Commission.

It is submitted that the remedy in this claim does not lie ex debito justitiae, as such, the Court ought not to grant the reliefs sought by the Applicant. Further, it is the respectful submission of the Respondent that the Applicant has failed to establish that he has the requisite locus standi to bring such an application before this Honourable Court and this application ought to be struck out as such.

Interpretation of Article 161 of the Constitution of the Co-operative Republic of Guyana.
Article 161(1), (2), (3) and (4) talks about the conditions under which the Chairman of the Guyana Elections Commission, (GECOM), should be appointed. These conditions have clearly been stipulated under the provisions in the Constitution.
Under Article 161(2) the conditions are in two categories:-
i. Mandatory qualifications, that is to say, the candidate for the Chair must be either a sitting Judge or a person who held the office of Judge of the High Court or a person who qualifies to be appointed as a Judge.
ii.
ii Optional qualifications, that is to say, that for a candidate to be appointed under this optional choice of the President, that person should be a fit and proper person or his or her nomination would be unacceptable to the President.
It is important to note that, in ordinary language definition, “or” is a conjunction/disjunction used to connect alternative terms for the same thing, i.e. it is normally used to connect words, phrases, or clauses reprinting alternatives.
This meaning is in line with Section 5 of the Interpretation and General Clauses Act, Chapter2:01 which provides;-“or”, “other”, and “otherwise” shall be construed disjunctively and not a simplying similarity, unless the expression “similar”, or some equivalent expression, is added;

Where the List of the Candidates submitted by the opposition leader contains a sitting or a former Judge, it was mandatory to consider those two nominees first before considering the others.
Thus, it is respectfully submitted that under Article 161(2) of the Constitution, it is mandatory for the  President when appointing Chairman of the Elections Commission to first consider a person who holds office of the Judge , i.e. a sitting Judge. However, if he cannot get a sitting Judge, it is mandatory for him to consider the second option, that is to say; a person who has held office as a Judge, i.e. former Judge.

Any other Fit and Proper Person
Further, where the President is unable to find any candidate from the mandatory two options, above, by the use of “or” in the beginning of the last six lines of sub article (2), he can use his discretion to determine who is fit and proper to qualified to be appointed the Chairman Elections Commission. It is pivotal to note that the President can exercise his unfettered discretion to determine who is fit and proper in the list to appoint.
It is respectfully submitted that where the Executive President of the Co-operative Republic of Guyana determines that no listed person is fit and proper to appoint, his discretion cannot be challenged.

It is a cardinal principle of interpretation of statute that where a provision contains mandatory and alternative conditions, the mandatory conditions must be considered and satisfied first. In this instance therefore, it is imperative that the President first considers and applies the mandatory qualifications in selecting the Chair of the Commission.
Where the President has studied the list sent to him by the Opposition Leader and noticed that no single nominee on the list has satisfied the requirement of mandatory qualification, he can resort to the alternative qualifications which gives him very wide discretionary powers in considering the list. These very wide discretionary powers include the power to reject the list in its entirety.

In Law, the meaning of the phrase “fit and proper person” is subjective. It is therefore the right of the appointing authority to utilize the provisions under Article 161(2) to determine who is a fit and proper person to be appointed. In this case the President of the Co-operative Republic of Guyana is the authority who has the right to determine who is fit and proper.

Furthermore, the words “not acceptable to the President” affirm the President’s right to determine who is a fit and proper person and not the Opposition Leader. It is respectfully submitted that where the Leader of the Opposition had considered the mandatory requirements of Article 161(2) and included three or more or less sitting or past Judges in his list, the President would be bound to first consider any of these sitting or past Judges (being the mandatory requirement before considering the other nominees).

Hence, in conclusion, in view of the above-mentioned facts, the President has a complete and wide discretion to reject the nominations for the Chairman of GECOM on the grounds that they are not fit and proper persons and are unacceptable.
All of the above is most respectfully submitted.