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President David GrangerPresident Granger says CCJ must explain how the process of appointing Justice Patterson as GECOM Chair was flawed MAINTAINING that he has never acted in breach of the Constitution of Guyana, President David Granger said the Caribbean Court of Justice (CCJ) must identify the “flaw” in the process of appointing Justice (Ret’d) James Patterson, Chairman of the Guyana Elections Commission (GECOM).

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“I always operated within the ambit of the Constitution,” President Granger told reporters while at the Ministry of the Presidency on Wednesday. According to him, his appointment of a Chairman of the Elections Commission would only be a “fit and proper” person in accordance with the definition laid out in the Constitution.

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“I have never gone outside of the Constitution. If they felt that the process was flawed, they must let me know what the flaw is,” President Granger maintained. The President said he will await Monday June 24, 2019 when the CCJ will make a number of consequential orders in relation to the appointment of a new Chairman

“There is no way that I can see that the decisions I have taken are flawed because it is the responsibility of the Leader of the Opposition to send me a list of six persons who are not objectionable,” he told reporters.

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President Granger on October 19, 2017, activated the proviso in Article 161 (2) and appointed Justice (Ret’d) Patterson as Chairman of GECOM after he found that three lists of a total of 18 names, submitted by Opposition Leader Bharrat Jagdeo, were not acceptable.

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In an effort to arrive at an acceptable list, the President, at one stage, provided a Statement of the ‘Qualities of the Chairman of the Guyana Elections Commission,’ but the lists that followed were, according to him, still unacceptable.

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In handing down the judgment in the case of Zulfikar Mustapha v the Attorney General, President of the CCJ, Justice Adrian Saunders explained that in arriving at the decision, the court analysed the Constitution of Guyana with focus on the evolution of Article 161 (2), which was characterised by a significant shift from exclusivity and unilateralism, on the part of the President, to inclusion and consensualism between the President and the Leader of the Opposition

The CCJ ruled that the President and the Opposition Leader ought to have met prior to the submission of the list, and consulted on names. “The court decided that the most sensible approach to operationalising the article was for the Leader of the Opposition and the President to communicate with each other in good faith and perhaps even meet and discuss eligible candidates for the position of Chairman before a list is formally submitted,” Justice Saunders said

President of the CCJ, Justice Adrian Saunders He explained that consultation between the President and the opposition leader would have allowed for consensus and submission of a list of six persons who would have reached the eligibility requirements

By a majority, the court found the President should only find a nominee unacceptable for some good reason on objective ground,” Justice Saunders explained

He further explained: “If a President were permitted, capriciously or whimsically, without proffering a good reason, to reject eligible nominees, this would frustrate the proper working of the Constitution, defeat the intention behind the amendment to Article 161(2) and pave the way for unilateral presidential appointment.”

The CCJ said once the President and the 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. This would automatically be followed by the President’s selection of a chairman from among the names provided

Based on the court’s assessment of the events that transpired between November 22, 2016, when the President invited the Opposition Leader to submit a ‘list of six persons, not unacceptable, and November 19, 2017, when the President rejected the third list and appointed Justice (Ret’d) Patterson, Justice Saunders said the President was not entitled to lay down, as a precondition to considering a nominee, eligibility requirements that were additional to or at variance with those prescribed by the Constitution

In a concurring judgment, Justice Winston Anderson noted that President Granger found each of the lists to be unacceptable but without giving any specific reason for their unacceptability

“For substantially the reasons advanced by the learned President, I agree that the process followed in the appointment of Justice Patterson was fatally flawed and did not comport with the constitutional requirements. The history of its drafting and the wording of the provision in Article 161(2) clearly anticipate meaningful consultation, dialogue and compromise between the President and the Leader of the Opposition in the making of the appointment,” Justice Anderson said. The court maintained that the President and the Opposition should have met and agreed on the names before the formal submission of the list