Lawyer questions how President’s GECOM Chair appointment can be lawful exercise of discretion

Jan 06, 2018 News, https://www.kaieteurnewsonline...rcise-of-discretion/

The Constitution of Guyana, specifically Article 161 (2), does not give President David Granger the discretion to reject all the nominees for Chairman of the Guyana Elections Commission (GECOM) that were submitted to him by Leader of the Opposition Bharrat Jagdeo.

This was the contention of Attorney-at-Law Manoj Narayan, who is representing People Progressive Party/ Civic (PPP/C) executive member Zulfikar Mustapha, who has filed a motion asking the court to reverse the President’s unilateral appointment of retired Justice James Patterson as Chairman of GECOM.

The matter lasted for some two hours when it was called for reports yesterday before Chief Justice (ag) Roxane George at the High Court in Georgetown.

During his submission, Narayan argued that Article 161 (2) only empowers the President to review, and not the discretion to reject all the nominees submitted by the Leader of the Opposition.

It is Narayan’s argument that the President must select a name from the lists submitted by the Leader of the opposition and appoint that person as Chairman of GECOM.

According to Article 161 (2), “Subject to the provisions of paragraph (6), the Chairman of the Elections Commission shall be appointed by the President from among persons who hold or have 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 are qualified to be appointed as any such judge.”

According to Narayan, the President preferred to have a former judge appointed Chairman of GECOM, and later appointed a retired judge to the post, without  stating reasons for deeming each of the six names on the lists submitted to him by the Leader of the Opposition as unacceptable.

As such, Narayan asked the court to find whether the President’s rejection of all the names on the lists submitted by Jagdeo for the post was unreasonable or not, since nine of the persons on the lists submitted by the Leader of the Opposition held judicial posts.

Narayan questioned how this appointment by the President can be a lawful exercise of discretion.

However, Attorneys-at-Law Hal Gollop and Ralph Thorne, who appeared on behalf of Attorney General (AG) Basil Williams SC, who is listed as the respondent in the matter, are contending that the President acted legally, rationally and in accordance with the necessary procedural proprieties when he unilaterally made the appointment.

Gallop argued that a proper exercise of discretion is granted to the Head of State under Article 161 (2) of the Constitution of Guyana. According to Thorne, the President and Leader of the Opposition are vested with legal equity, in that they are engaged in consultations on the appointment of a Chairman for the elections body.

But at the end of it all, Thorne said that only one person can be appointed by the President who has “sole discretion.”

Gallop, in addressing the issue of discretion, cited Article 111 (1) of the Constitution of Guyana which reads, “In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with his own deliberate judgement except in cases where, by this Constitution or by any other law, he is required to act in accordance with the advice or on the recommendation of any person or authority.”

Gollop said, “This phrase ‘his own deliberate judgment’ says it all. That discretion has been exercised.”

Among other things, he said the President arrived at appointing a GECOM chairman in compliance with Article 161 (2), after reviewing the case of Marcel Gaskin v the Attorney General of Guyana, and after rejecting the lists of names submitted by the Leader of the Opposition as unacceptable.

In response, Narayan stressed that the law outlines that the President and Leader of the Opposition have to arrive at a consensus individual for the job. He argues that gone are the days when the President had sole discretion of making appointments, with Guyana having received years of assistance on Constitutional Convention from the Carter Centre, among others.

In the early stages of his submissions, Thorne inquired of the dormant role of Jagdeo in the matter.

“Why is the Leader of the Opposition so silent?” he questioned, adding that Mustapha is not a “proper party” to represent Jagdeo in a challenge that involves the President.

Thorne underlined that the nexus between the President and AG—who represents the President and state in legal proceeding—is constitutionally supported. He further contended that Mustapha being a Member of the National Assembly and Executive Secretary of the PPP/C, does not take him into the realm of a secret constitutional arrangement, as the one between the President and AG.

However, this issue of Locus Standi was seen as “misconceived” by Narayan, who told the court that anyone who has the right to vote can bring an action against the President.

According to Narayan, “At no time whatsoever did Zulfikar Mustapha purport to act as the Leader of the Opposition. He is acting in the position as a person who has the right to vote.”

A date for ruling in this matter is to be announced by the acting Chief Justice. Notices will be sent to the parties.