I have followed with more than passing interest the debate on the interpretation of Article 161 of the Constitution which deals with the Guyana Elections Commission (Gecom). Article 161 (1) requires the Chairman to be full-time and mandates that he shall not engage in any other employment. The real debate however has been in relation to Article 161 (2) which deals exclusively with the Chairman and his appointment.
For brevity, let me state that 161 (2) sets out the classes of persons eligible for appointment as Chairman as: current or former judges, persons qualified to be appointed as a judge (which is seven years after admission to the Bar) or other fit and proper person. The persons shall be named in a list submitted to the President by the Leader of the Opposition, not unacceptable to the President. Article 161 (2) has a proviso which states that if the Leader of the Opposition fails to submit a list, the President will appoint as Chairman a judge, former judge or one qualified to be a judge.
My submission, bold as it is, is that the interpretation which has been placed on 161 (2) by persons, including most recently the outgoing Chairman of Gecom Dr Steve Surujbally, is wrong. Admittedly, Article 161 (2) could have been better stated. But for the provision to make any practical sense, the President has to make the appointment from the list submitted by the Leader of the Opposition, unless he makes a positive determination of fact that every person on the list is unacceptable for consideration.
Consequently, the proposition by persons that the Constitution gives precedence to judges is misconceived. In fact, the President can only make the appointment from the category of judges listed if no list has been submitted, or if he makes a positive determination of fact that the persons on the list are unacceptable for consideration.
In other words, the invocation by the President of the judge category is a default mechanism, not a primary option as suggested. What the President has sought to do is reject the list outright because no one from the judge category was included. With the greatest of respect, that is a completely baseless reason for any rejection. The President has not made a positive determination that any of the persons are unacceptable to him and therefore every person on the list remains acceptable for consideration.
The suggestion has also been made that because the first list does not include any person falling within the judge category (which incidentally is wrong), the President can request a second list. Again, my submission is that there is no provision in the Constitution for such a second list.