NO GECOM Chairman: Democracy, Rule of Law, Constitution under threat

…by Govt’s failure to appoint important body- PPP

The People’s Progressive Party (PPP) has issued a statement, which the party says is intended to specifically coincide with the presence of the Heads of States of Caricom and other dignitaries currently in Guyana and to draw to their attention “certain fundamental political and constitutional issues affecting Guyana, more particularly, since they may have implications for the stability and the democratic credentials of Guyana, and indeed, the Region as a whole.”

See full statement below:

It is now dated news that the President has rejected the list of nominees presented to him by the Leader of the Opposition to fill the position of Chairman of Guyana Elections Commission (GECOM) in accordance with Article 161(2) of the Constitution.

In so doing, the President has etched his name in history, as the first President to have done so, since the Carter Formula was implemented for the 1992 Elections. The President has compounded the issue by the erroneous interpretation of the said Article 161(2), which he conveyed when he spoke to the media at a function at State House.

In his remarks, the President communicated the misguided impression that only judges, former judges or persons qualified to be appointed as judges to the High Court or an Appellate Court qualify to be appointed as Chairman of the Elections Commission. The President omitted to disclose that in addition to those possessed of legal qualifications, the Constitution also provides for… “or any other fit and proper person” to be appointed as well. Indeed, the 1980 Constitution was specifically amended to make this addition.

The Carter Formula was intended and designed to create, as far as possible, a politically consensual and balanced Elections Commission. Hence, the Commission is composed of three (3) Commissioners nominated by the Opposition parties in Parliament and three (3) commissioners nominated by the governing party, along with a Chairman who has a casting vote. This Chairman comes from a list of six (6) which emanates from the Leader of the Opposition but which must find the acceptability of the President and from which he is empowered to choose one. If the Chairman is to be chosen by the President alone, it would destroy the vital equilibrium which the Elections Commission was intended to possess.

Whatever discretionary power may lie with the President in this matter, that discretion must be lawfully exercised, that is, the President is enjoined to exercise his discretion reasonably, rationally, taking into account relevant considerations and discounting irrelevant considerations; he must not act capriciously and whimsically.

It is unfortunate, that while he regales the nation about social cohesion and national unity at frequent intervals, the President is unprepared to meet with the Leader of the Opposition on such a crucial issue. Such a meeting would have certainly exposed the President to a different interpretation of the Constitution from the one fed to him by the Attorney General.

In the meanwhile, political tensions have risen high. Suspicions have been excited and the fear of rigged elections has returned to stalk this land. Having regard to our political history and from where the imbroglio has originated, these fears are not without foundation.

After all, we have gone through the process of appointing a Chairman of the Elections Commission, on five (5) previous occasions over the past twenty- five (25) years, using the identical Constitutional formula.

On each occasion, the exercise was completed with seamless ease and was devoid of any rancor or conflict.  No one ever expressed the view that the language, spirit or intendment of Article 161 (2) of the Constitution was ambiguous or obscure.

Mr. Desmond Hoyte, a Senior Counsel, was shouldered with the Constitutional duty of presenting four of those five lists, as the Opposition Leader. He appeared not to have ever encountered any difficulty in construing the Constitutional requirements or compiling names for those lists. Over the years, he provided lists with names of Guyanese of diverse and disparate academic qualifications, technical skills and professional pursuits. On each occasion that he submitted such a list, the sitting President, without question, selected one person from the list submitted. Although profound legal and other controversies surrounded the 1992, 1997 and 2001 elections, all emanating from the political Opposition, none touched or concerned the process by which the Chairman of the Elections Commission was appointed.

The first time that the table has turned and the Opposition has now become the Government, this hitherto, simple and non-contentious process has suddenly become extraordinarily complicated, complex and controversial.

It is clear that technical arguments and obscure legal interpretations are being invented to frustrate the real meaning and spirit of the Constitution. It is equally clear that the President wants to appoint his own nominee to the position of Chairman of GECOM. If this is allowed to happen, it will tilt that vital balance which the Carter formula was intended to achieve. Such a state of affairs will result in rigged elections and social unrest and violence. It will mark Guyana’s backward slide into political dictatorship and authoritarianism.

Independent constitutional officers responsible for scrutinizing the Executive under constant attacks by Government

Of course, the blatant attempt to violate the Constitution by this Administration in relation to the appointment of a Chairman is not an isolated phenomenon. We have already seen the systematic attempts by the Executive to undermine Constitutional offices and institutions whose functional responsibility is to check, oversight and scrutinize the Executive and to guard against excesses and abuse of power.

These include: the National Assembly, the Judiciary, the Judicial Service Commission, the Director of Public Prosecutions, the Auditor General’s Office, the Public Service Commission, the Police Service Commission, the Public Utilities Commission and the Police Complaints Authority. In each of these organizations, there have been attempts to interfere with, undermine, or publically assault officers, as they attempt to discharge their respective mandate. Most, if not all, of these attempts have been made public. Some have resulted in litigation. In some instances, adverse rulings have already been made against the Government by the courts.

In particular, because of its special role in guarding against constitutional violations, abuse of power and protection of democratic institutions, the Judiciary has been specifically singled out for attacks designed to undermine its independence.

There have been no appointments to the Judiciary in almost two years since this Government assumed Office. The Judicial Service Commission has recommended several appointments of judges to the President, to both the High Court and the Court of Appeal. The President simply refuses to make the appointments. Currently, there are three vacancies in the Court of Appeal and several in the High Court. The Court of Appeal cannot sit without a judge moving up from the High Court.

Additionally, the Attorney General openly abuses judges in the media and in the Courts.  The Chairman of the Public Service Commission, who is also, ex officio, a member of the Police Service Commission and the Judicial Service Commission was invited to the Office of the President and requested to resign.

When he refused, he was issued with veiled threats. This was followed by the establishment of a tribunal to remove him from office. Currently, he is suspended from performing his various Constitutional functions.

The DPP’s Office is constantly being undermined; the latest incident is the hiring of Special Prosecutors by Office of the President without the authority of the DPP.

In the Parliament, the Government has installed a Speaker who unfairly censors freedom of speech in the National Assembly in relation to Opposition Members of the House. This Speaker is, openly, partisan to the Government. The Auditor General was the subject of a humiliating verbal assault at the hands of the Minister of Finance simply because in his Annual Report he opined that the Government was abusing the contingency funds in their public expenditures.

Constitutional rights of the citizens being trampled upon

Dozens of fifty year old agricultural leases issued under the previous Administration to farmers are being capriciously revoked by the President without any due process whatsoever. These very lands are then given to Party hacks by this Administration.

This Government has confiscated properties owned by Title and given to single parents under the previous Administration, under a subsidized housing program and are distributing these properties to their own supporters. Many of these constitutional excesses are currently the subject of litigation.

There have been mass dismissals of persons, including, nearly two thousand Amerindians,  in the public sector on the ground of their ethnicity or perceived association with the previous Administration, although the constitution enshrines protection against discrimination and the freedom to associate, politically and to hold political views as fundamental rights and freedoms. These persons have not been afforded a hearing nor paid their severance or contractual benefits.

The above is by no means exhaustive and we have irrefutable evidence, in most instances, in the form of sworn Affidavits from the victims, to support every single transgression cited above.

In the circumstances, it is clear that democracy, the rule of law and the sanctity of the Constitution are under threat in Guyana.

People’s Progressive Party