These legal hurdles have to be resolved in our courts
Oct 26, 2017 , https://www.kaieteurnewsonline...olved-in-our-courts/
Anil Nandlall and Chris Ram are correct in their interpretation of the double negative “not unacceptable” contained in Article 161 of the Constitution of Guyana.
If it was the intention of the framers of the Constitution that the choice of the Chairperson of the Guyana Elections Commission must be someone who is acceptable to the President, they would have simply said that the President must choose someone who is ‘acceptable’ to him from the list chosen by the Leader of the Opposition.
The framers of the Constitution, however, have used the double negative. They have said that the President has to choose someone who is “not unacceptable”. In other words, from the list, he has to pick someone who is “not unacceptable” to him, not someone who is perfectly acceptable to him or his preferred choice.
He is required to choose someone he can live with. That person may not be his ideal candidate, but once he can live with the choice, he can choose that person.
The President rejected three lists submitted by the Leader of the Opposition. The court has held that it is the names on the list which must be found ‘not unacceptable’ and not the list itself. Therefore, as long as there is a name on the list which is “not unacceptable” to the President, he has to choose that name.
He cannot keep asking for names, which is what he has been doing, until someone acceptable to him is found. The Constitution does not require him to find someone who is acceptable to him. It requires him to choose some who is “not unacceptable” to him.
The source of the President’s confusion is his understanding or lack of understanding of what the double negative, “not unacceptable” means.
The interpretation of “not unacceptable” will be the critical hurdle that the defenders of President Granger will face in any legal challenge to his appointment of a Chairperson of GECOM. If the President’s legal team cannot surmount the interpretation of the double negative, its case will be doomed.
The President has a right to appoint, but the Constitution guides him on who should be appointed. The right to appoint must therefore not be confused with who to appoint. Under the Carter formula, the person appointed has to come from the list provided by the Leader of the Opposition.
It was the President who initiated the process of inviting the Leader of the Opposition to submit names. The President, therefore, is the one who invoked the Carter formula. Once he is locked into that process, then the only way that he can unilaterally appoint someone of his choice is if no list was submitted.
The second hurdle that the defenders of the President will face is answering the question as to how and under what conditions can the President exit the Carter formula, and choose whomever he pleases.
These legal hurdles have to resolved in our courts. They are likely to be only resolved after the matter has been ventilated at Guyana’s highest court, the Caribbean Court of Justice.
A long legal battle lies ahead. Many lawyers will be looking to align themselves with either side. It is cases like these which can make an ordinary lawyer become a legal luminary. You win a case like this and you go down in Caribbean constitutional history.
The opposition is expected to assemble a formidable legal line-up. The opposition has the chance to form a broad pro-Constitution alliance with civil society, including the Guyana Bar Association, the Association of Women Lawyers, the Private Sector Commission, the Central Berbice Chamber of Commerce, the Upper Corentyne Chamber of Commerce, the Federation of Independent Trade Unions of Guyana and the Guyana Human Rights Association.
It has been said that the PPPC can fight this battle alone and win. But why fight it alone when the opportunity exists to bring together pro-democracy and pro-Constitutional forces in the country on an issue which has grave implications for Guyana? Why make this a PPPC vs. the President issue when it can become a pro-democracy issue?
The PPPC held a seminar recently which was streamed live around the world. It was seen by viewers in New York. The line-up of speakers was disappointing. The two main speakers were two former Attorneys General, Bernard De Santos and Anil Nandlall. The other speakers included former president and PPP General Secretary Donald Ramotar and present General Secretary Clement Rohee. Apart from De Santos, all the other panelists are members of the PPP.
This is an example of the myopic thinking which has traditionally strangulated the PPPC. Here was a golden opportunity to go beyond partisan considerations and broaden participation to persons from civil society, including those who are up in arms with the decision of the President.
If the PPPC cannot change its ways, if it does not appreciate the importance of building non-partisan alliances, it will never win another election in the country. It may win the case against the President, but lose the larger battle for the votes of the majority of Guyanese.