If elections are not held on or before September 18, as appears likely, the Government will fall over a constitutional precipice which is fast approaching. According to Vice President Khemraj Ramjattan, Minister of Public security, speaking on a podcast on Wednesday last, if the Gecom Chair advises the President that free and fair elections cannot be held without a new electoral list compiled by house to house registration, the President will have no choice but to fix a date for elections when it is estimated that registration is expected to be concluded. That date is December 25, according to Gecom’s lawyer, advising the CCJ.
In relation to whether elections will held on or before the due date of September 18, VP Ramjattan said on Wednesday last, “I doubt it, I seriously doubt it.” While VP Ramjattan stressed that it was his opinion, such an opinion coming from a Vice President of Guyana, even before a Chair of Gecom is appointed and forms an opinion on the list, carries great weight. When asked about the status of the Government after September 18, he said that the doctrine of necessity will apply so that the Government would be lawfully in power and its decisions would be lawful. Accordingly, any Government can deliberately refuse or fail to hold elections, claim the right to do so under the doctrine of necessity, and lawfully stay in office! Such twisted logic has sadly become part of the degenerated discourse on our constitution and its interpretation.
The Government’s approach to the Constitution has been marked by its scant regard for the document. There is the President’s now well-known statement that the Chief Justice has her view of the Constitution and he has his. There is the refusal of the Cabinet, a constitutionally identifiable agency, and distinct from the Executive, to resign upon the passage of the no confidence motion as required to by article 106 of the Constitution. There is the violation of the Constitution in the appointment of the Chair of Gecom. Since the ruling of the CCJ, the Cabinet still brazenly functions. Now the President predicts gridlock if he does not get the right to nominate candidates for Gecom.
The President appears to be demanding, not a give and take where names are “hammered out,” but a formal role in submitting names which the Leader of the Opposition must place on the list of six for the President’s consideration. The President is in effect demanding the right to appoint his own nominee. The President is now advancing another of his own peculiar interpretations of the Constitution and applying it to the decision of the CCJ.
VP Ramjattan argued for the President’s right to nominate persons last Wednesday and relied on paragraph 26 of the CCJ’s decision. This is what it says: “We are of the view that the most sensible approach is that before the list is submitted, the Leader of the Opposition and the President must communicate with each other in good faith on, and perhaps even meet to discuss, eligible candidates for Chairman. The aim of these discussions must be to agree that names of six persons who fit the stated eligibility requirements and who are not unacceptable to the President. In this regard, the Constitution anticipates that the Leader of the Opposition and the President will conduct themselves in a reasonable and responsible manner, eschew partisanship and seek the best interests of the Republic and the Guyanese people.” (My emphasis). After reading it, VP Ramjattan could not point out the portion which gives the President the power to nominate persons.
VP Ramjattan should have quoted the more appropriate paragraph 28, but he didn’t. Mr. Justice Saunders said: “Once the President and Leader of the Opposition have hammered out a list of names not unacceptable to the President, the list, comprising the six persons, must then formally be submitted to the President by the Leader of the Opposition and the President must select the Chairman from those names. This approach gives the President a role in the identification of the six names, but it obviates the possibility that, after the formal presentation of the list, the President could suggest that one or more of the names, or indeed the entire list, is unacceptable. Unilateral appointment by the President in keeping with the proviso to Article 161(2) can hardly be an option if the Leader of the Opposition demonstrates a willingness to engage in good faith the process outlined above.” (My emphasis).
The President seeks to elevate phrases such as “perhaps even meet to discuss eligible names,” “hammering out a list of names” and giving “the President a role in the identification of the six names,” as meaning that he has a right to nominate names which, once nominated, must be included on the list of six. If this is not the correct interpretation of the President’s view and if the President is not seeking the unfettered right to choose the Chair of Gecom, why should there be gridlock? The President has a “role,” not a right.
The President needs to immediately announce a date for elections before September 18, proceed with the appointment of a Chair of Gecom and allow Gecom to do its job.