Jan 14, 2017
The President of Guyana should not make rocket science out of the process of selecting a Chairperson of the Guyana Elections Commission. Having invited the Leader of the Opposition to submit six names for consideration as Chairperson of GECOM, he has complicated a simple matter with his injudicious statements about the Constitution and the qualification of a judge.We do not have a situation whereby the President can simply appoint whomever he decides once that person is a judge. We are still at the stage of the Carter formula.
The Carter formula was invoked by the President himself in setting in train the process for selecting the Chairperson of GECOM. The Carter formula has been the precedent which has been used to select all of the previous Chairpersons since 1991. It is a settled constitutional convention. It would be unwise, and unconstitutional, to dispense with it arbitrarily.The Carter formula is the best means of ensuring an impartial Chairperson of GECOM. If there was any other agreeable formula out there it would have already been tried and become law. No one has come up with a better formula.
The Carter formula is a consensus-achieving process. It ensures that no one side has a numerical advantage in the make-up of the Guyana Elections Commission.
The Carter formula is simple. The six commissioners of GECOM are chosen by the President and the Opposition Leader. The government side selects three commissioners and the opposition side selects three persons. A seventh person, the Chairperson, is selected based on a consensus mechanism â the Carter formula.The Chairperson must be selected from a list of six persons nominated by the Leader of the Opposition. The person chosen must not be objectionable to the President.This means that there must be consensus between the President and the Leader of the Opposition on the person chosen. The Leader of the Opposition provides a shortlist of six and the President picks his choice from that list provided that the person picked is agreeable to the President.
It could have been the other way around. The Leader of the Opposition could have been asked to pick from a list of six names nominated by the President. The person selected could have been someone from that list that is not objectionable to the Leader of the Opposition. But under the Carter formula, it is the President who selects from the list.Obviously, the President is not compelled to agree to any of the names. But it is hard to conceive of a process of consensus-building if the President can simply reject the list of names and go ahead with appointing his own choice, outside of that list, as per the original provision in the Constitution.This would amount to a veto power over the Chairperson. It would destroy the consensus framework of the Carter formula.It would also mean that the Chairperson could be a partial person, thereby upsetting the balance of the Commission by giving the government sidefour choices rather than three choices. It is for this reason that it is being argued that if the President is confronted with the unprecedented position of not agreeing to any of the names submitted, then he has to ask the Leader of the Opposition for a second list.
The Constitution does allow the President the option of not invoking the Carter formula and appointing a judge or ex-judge to the position. This was the 1980 proviso that was retained. But that has been overridden by the Carter formula which is a Constitutional convention by practice.
However, it is not the means of breaking a deadlock between the President and the Leader of the Opposition. The Constitution provides, also, that if the Leader of the Opposition does not provide a list, then the President can appoint a person of his choice who is a judge, a retired judge or someone qualified to be a judge. This prerogative, however, only arises if the Leader of the Opposition, in some act of political non-cooperation, does not submit a list.
The President of Guyana must not assume, therefore, that he has a right to appoint someone so long as he is not in agreement with the names on the list provided by the Leader of the Opposition. He only has that right once no list is submitted.It is therefore respectfully submitted that the President is bound by the Carter formula and having invoked it cannot dispense with it as he pleases.