Statement by the Bar Council of the Bar Association of Guyana on the Appointment of a Chairman of the Elections Commission21st October 2017
The Bar Council of the Bar Association of Guyana is deeply concerned by the President’s unilateral appointment of the Chairman of the Elections Commission. No President of Guyana from either of the major parties has made a unilateral appointment in more than twenty-five years.
The unilateral appointment of the Chairman can lead to a loss of public confidence in the electoral process which is entirely undesirable having regard to Guyana’s experience in past elections.
The Bar Council expects that, in keeping with the ruling of Chief Justice George in the matter of Marcel Gaskin against the Attorney General, the President will provide reasons for the rejection of the eighteen names submitted to him by the Leader of the Opposition as prospective candidates for appointment.
The Chief Justice ruled that reasons are required to be provided so that it is known why there is a rejection. Her Honour said that this is in order that the President may properly move to apply the proviso to Article 161(2) of the Constitution, which allows the President to appoint persons from the judicial category only.
The President’s power to make a unilateral appointment to the office is limited by the Constitution only to the situation where the Leader of the Opposition fails to submit a list as provided for by the Constitution.
It should be obvious therefore that Guyanese cannot satisfy themselves that there is an objective and lawful basis for the President’s unilateral appointment of Justice James Patterson to that office unless publicly stated reasons for the rejection of the eighteen persons found by the President to be unfit to hold the office of Chairman of the Elections Commission are provided. Only if clear and detailed reasons are provided which show cause why each of the eighteen rejected persons is unacceptable to the President for appointment to the office of Chairman of the Elections Commission would it be possible to establish that the Leader of the Opposition failed to submit a list as provided for by the Constitution.
The ruling of the Chief Justice that reasons are required is part of the law of Guyana until such time as it may be set aside by a higher Court. The Constitution must therefore be read in light of that decision.
The Chief Justice also ruled that “while the President is immune from suit his decisions and actions are not. Thus, whether in the exercise of his discretion there has been compliance with the Constitution is justiciable”.
The Bar Council expects that reasons for rejecting the eighteen persons leading to the unilateral appointment of Justice James Patterson will be provided forthwith to avoid the necessity of further litigation on this issue on its part.
The Bar Council also notes the statement of the Alliance For Change of 20 October that each of the lists supplied to the President fell short of what was required by the Constitution. It regrets that, unlike the Bar Council, the Alliance For Change did not seek to provide assistance to the Chief Justice by providing legal submissions in that regard so that the precise legal reason each of the lists fell short of what was required by the Constitution could be publicly known.