Letter: Despite its unconventionalism, CCJ ruling on appointment of GECOM chairman traps Bharrat Jagdeo in political checkmate

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Dear Sir:

I’m for the enforcement of Guyana’s sovereignty. Therefore, I believe the Caribbean Court of Justice (CCJ) ruling that president David Granger’s appointment of Justice James Patterson as chairman of the Guyana Elections Commission was unconstitutional because of a lack of consultation, is a dangerous overreach by the court. No where in the constitution mandates the president to consult anyone on said appointment.

Already, very few Caribbean Countries have signed on to the CCJ as their final court of appeal. Ironically Trinidad and Tobago, where the court is based, doesn’t.

Politicians across the region are keenly watching how the court resolves these gargantuan political cases in Guyana. Judicial activism and usurpation of the powers of the Guyanese legislature will spark condemnation in Guyana and deter additional subscription to the court’s appellate jurisdiction. Overreach may also cause countries to opt out the CCJ treaty. The court can then disintegrate and collapse, as it rightly should, if it ventures into supplanting the will of the people with the will of the Justices of the court.

I have been very critical of the CCJ ruling because it severely altered the provisions in 161 (2) of the Guyana constitution. Article 161 (2) mandates the leader of the opposition to, after meaningful consultation with other opposition parliamentary political parties, submit to the President a list of 6 names of persons eligible who are not unacceptable to the president, to be appointed Chairman of the Guyana Elections Commission (GECOM).

The proviso to this provision mandates that if the names submitted are unacceptable, the president shall reject the list and use his own deliberate judgement to independently appoint a person who is so eligible to be chairman of GECOM. This is exactly the process president Granger followed, after he rejected several lists submitted by opposition leader Bharrat Jagdeo. All of Jagdeo’s names were unacceptable under the provision of the constitution.

However, the CCJ in its inexplicably remarkable wisdom held that the president violated the constitution by not consulting with Jagdeo on names that were not unacceptable to him. This consultation requirement is a ridiculous invention by the CCJ that is not provided for in the Guyana constitution. Additionally, the CCJ ruling introduced the doctrine of consensualism into Article 161 (2) of the constitution – another invention that is outside of the thinking and intent of the framers of our constitution.

The CCJ judgment mandates the opposition leader and the government to first consult on names that are acceptable to the president for submission by the opposition leader. This means both sides must first agree to the list of 6 names before it is submitted to the President to avoid his resort to the proviso. This mandate is ill-conceived. The proviso was obviously placed in the provision to deter the opposition leader from deliberately obstructing the process by submitting unacceptable names, which is exactly what Jagdeo has been doing.

The unconventionalism of the CCJ ruling is that it allows the government to, during the consultative process, put forward its own nominees which, if there is to be consensus as mandated by the CCJ, the opposition leader is now bound to include on any list to be submitted to the president. Hence, Jagdeo, as opposition, has lost his ability to unilaterally nominate 6 persons from which the president shall select one to be appointed chairman of GECOM.

Jagdeo has demonstrated that he and his party believe that they must continue to control the Guyana elections commission, and only an East Indian must be chairman. During the 23-year tenure of The People’s Progressive Party (PPP) government, only East Indians and one none black was appointed chairman of GECOM – a testament of the PPP’s unwavering, iron fist philosophy of racial identity politics. Racism is alive and well in the PPP. They practice it in full plain view, because we accept it as that party’s main, political characteristic.

Jagdeo will continue to nominate none East Indians and Afro-Guyanese who are completely unacceptable, as well as Indians who are politically unfavorable to the coalition. The president and his negotiators must reject every last such nominee. Particularly, the PPP’s list has does not contain any none Indian or Afro-Guyanese with national credibility or qualifications to be Chairman of GECOM.

Norman McLean has been fingered in illicit conduct and is discredited. He is also very aged an unqualified for the position. He is also perceived to be anti-coalition. Pastor Onesi LaFleur is an unknown adventist pastor. He’s perceived to be a PPP sympathizer. He may be a nice gentleman and good pastor but he has no, known qualifications whatsoever to be CECOM chairman, in accordance with the eligibility requirements set out by the constitution.

He is a neophyte, who would be instantly crushed in this meandering gush of political torrents. His inclusion on the list by Jagdeo is an absolute joke and demonstration of what Jagdeo thinks about “black people.” The PPP has been calculatedly selecting ineligible Afro-Guyanese nominees to naturally eliminated the possibility of an Afro-Guyanese chairman from their standpoint.

The CCJ ruling has created a conundrum and new process that is ultra vires the constitution. It will not produce any consensus. Moreover, Guyana must not allow the CCJ to make our laws. Its sole function is to interpret the laws that our National Assembly makes and enacts. This is its only jurisdiction. Any over-reach beyond its original jurisdiction is unconstitutional and unjust, and should be rejected.

Its un-conventionalisms nonetheless, the CCJ is a game changer. Jagdeo is in checkmate. He ran off to the CCJ to get them to invalidate the president’s independent appointment of Justice James Patterson as chairman of GECOM. He got that. But he was blindsided by the count’s obliteration of unilateralism from the provision. The president or opposition leader can no longer act unilaterally. The court imposed the doctrine of consensualism into the provision, which took away the opposition leader’s ability to unilaterally nominate 6 persons from which the president shall appoint a chairman.

This means the government now has a say in the six nominees the opposition leader submits to the president. There must therefore be three names from the government and three from the opposition on the list to be submitted to the president. This is the essence of consensualism.

A lack of consensus means that no list can be submitted. This is Jagdeo’s only way out of checkmate. Furthermore, if Jagdeo refuses to include the government’s nominees and unilaterally submits a list with PPP nominees only, that list would be in violation of the CCJ ruling, be deemed unconstitutional and must be rejected by the president, who can then resort to the proviso in Article 161 (2), and independently appoint a chairman.

I wait to see how Jagdeo will to maneuver himself out of this conundrum. CHECKMATE!

Rickford Burke
President
Caribbean Guyana Institute for Democracy (CGID)

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