BARBADIAN Queen Counsel, Hal Gallop and Ralph Thorne, and the former Attorney General of Guyana, Anil Nandlall clashed over the proviso in Article 161 (2) of the Constitution as arguments opened in the appeal against the ruling of Chief Justice (ag), Roxane George-Wiltshire, which upholds the appointment of Chairman of the Guyana Elections Commission (GECOM), Justice (ret’d) James Patterson.

The case was brought against the Attorney General Basil Williams by People’s Progressive Party (PPP) Executive Secretary, Zulfikar Mustapha, who is being represented by Nandlall. Article 161 (2) of the Constitution states that “…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 such 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. 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.”

Consensus candidate
Opening the arguments in the Court of Appeal on Thursday, Nandlall told Chancellor of the Judiciary, Justice Yonnette Cummings-Edwards and Justices Dawn Gregory and Justice Rishi Persaud that the existing formula which involves the Opposition Leader is aimed at arriving at a consensus candidate as Chairman of the Guyana Elections Commission (GECOM).

He argued that while the Opposition Leader, under the Constitution, is required to submit a list of six nominees that are not unacceptable to the President, the “President is not entitled to a perfect candidate.”

Nandlall emphasised that the Article within the Constitution was designed to bring a compromise, so that the candidate produced by the formula would be a person who enjoys both the confidence of the President and the Leader of the Opposition. “That is the magic of the formula,” he posited. Turning the court’s attention to the proviso, Nandlall explained that it came as a subsequent stage of the formula. “Obviously, someone recognised that a constitutional vacuum can be created if you have a…Opposition Leader who refuses to submit a list….It is to meet that very rare and exceptional eventuality that the proviso was inserted,” Nandlall contended.

The proviso, to which he 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.”

The attorney argued that the proviso cannot be activated once there is a list of reasonable names, pointing out that the Opposition Leader, in this case, furnished President David Granger with three lists of a total of 18 names. He noted that the lists were generated after he conducted extensive consultation. “These lists were rejected one after another without accompanying reasons,” he told the Appellate Court.

Gallop, in defense of the state, told the court that at the foundation of the case is the interpretation of the constitutional provision – Article 161 (2). According to him, Nandlall, in his arguments, refused to consider the phrase “not unacceptable.” Turning the court’s attention to the 2017 Marcel Gaskin vs. the Attorney General case, Gallop said “it is still good law.”

Gaskin, in his application, had questioned whether the list of persons for appointment as GECOM Chair to be submitted by Jagdeo must include a judge, former judge or person qualified to be a judge; the President is required under the constitution to state reasons for deeming each of the six names on the list as unacceptable; and whether the President is obliged to select a person from the six names on the list unless he has determined positively that the persons are unacceptable as fit and proper for appointment.

Justice George-Wiltshire in her ruling, said that persons nominated to be selected as Chairman of the Guyana Elections Commission (GECOM) do not have to be judges, former judges or persons qualified to serve as a judge, adding that the President has the ultimate say on who is determined fit and proper to serve in the post, and could also reject the list of nominees.

“The decision has not been appealed against, that says it all really,” the Barbadian Queen’s Counsel told the court. Addressing the issue of “discretion,” Gallop put to the court that Nandlall in his arguments was suggesting that the discretion did not lie with the President but rather the Opposition Leader, in this case, Bharrat Jagdeo.

He said that the argument put forward by Nandlall that once the Opposition Leader proffers a list, the appointment must come from there, is flawed. “I respectively suggest that the court must reject that submission. It did not find favour with the learned Chief Justice,” Gallop said.

He said the proviso that allows the President to appoint the Chairman of GECOM after failing to acquire an acceptable list from the Leader of the Opposition forms a critical part of the process. “If for whatever reason, the President cannot find somebody on that list that is not unacceptable to him, he has the right given to him by the Constitution to invoke the proviso,” Gallop argued, as he shot down the position put that the proviso can be activated only if a list was not provided. Thorne had put forward a similar line of argument.

The state was also represented by Attorney General and Minister of Legal Affairs, Basil Williams; Solicitor General Kim Kyte; and Principal Legal Adviser, Tiffany Castello.