Law and Governance

The Masses at the Gate: What’s Behind the People’s Movement in Guyana

By: Vivian M. Williams, Esq., LL.M.
For decades Guyana abandoned the principles of a merit-based society, opting instead for a system of political patronage. The country’s private sector followed in the shadows of the ruling political elites, elevating patronage and nepotism above merit and competence. Though One People, One Nation, One Destiny, the probability of success on the merits eluded generations of a hardworking and ingenious people. For more than quarter of a century, talented people have been falling through the cracks, the trajectory of their lives altered during adulthood precisely because of their ethnicity, thoughts and political association or lack thereof. Several generations of brilliant and extraordinarily talented people have been ostracized, marginalized and deprived even after the tides of colonial exploitation receded. These are the masses at the gate, trampled and systematically abused but still clinging to hope for a better day.

Vivian M Williams outside a New York Courthouse

The masses at the gate are weary and fed up of a system that excludes them, talks down to them and treats them as passive dwellers in a lopsided state built on a center-periphery model and greased by a top-down mentality. They have grown accustomed to barricades erected across the city, keeping them at bay from the Parliament when that deliberative body is in session. Barricades that jolt their quest for social and economic mobility are everywhere. For those who have been trying to climb out of the cracks for decades, time is running out. People are desperate, angry and very impatient, so when they heard the rallying crying “it is time” a few years ago, they jumped on board with great expectation.

The Cry for Justice is Deafening 

The exigency embodied in the mantra “it is time“, with its open-ended exhortation, lit a fire in a forest of discontent and secured a victory for the governing Coalition. Now in power, the Coalition should NOT expect great expectation to be displaced by feel-good rhetoric. Anxiety and uneasiness are part of the mood of the country. The masses at the gate expect transformative governance that produces structural changes that open up the gates to opportunities and prosperity. The people need social and economic justice and they need it fast. This is a reason why justifications premised on flashbacks are not going to satisfy public relations goals. The government has got to learn to sell a vision of change and governance of a new and distinctive quality.

Part of the great expectation is for a change in the fabric of the society and the way things are done. It requires new-direction-innovation not improvement-innovation. Improvement-innovation is useful to fix deficiencies in a sustainable system. It provides patch work and corrective action for weak links in a chain. This is useful when the overall vision and trajectory are ideal and progressive. Guyana does NOT have a system that needs fixing. The system needs to be uprooted and replaced with a completely new System. In a country where systemic marginalization has been the norm for decades, the need for a vision that drives new direction-innovation is so pellucid, it should be regarded as an undisputed fact.

When social and political activist Dr. David Hinds wrote that the government is a modified version of its predecessor, he is echoing the argument that the Coalition has NOT sufficiently reformed the processes of governance. Instead of taking note, the government pouted instead of introspecting. The response was anyone who compares it with its predecessor must be out of his mind. While campaigning against the PPP administration, President Granger who was the Leader of the Opposition at the time, was more attuned to the circumstances of the time. He poignantly summed up the nation’s flirtation with poverty. His own words then were:

“It is a modern-day miracle that many mothers manage their
families on their meagre earnings in the face of massive
impediments in Guyana today. Poverty is spreading, not shrinking.
The number of homeless and destitute persons continues to rise.
The solution is to reduce poverty, rather than increase the number
of institutions such as drop-in centres…”- David Granger

PUTTING VAT, PARKING METERS AND LICENSING FEES IN CONTEXT

The statement is an indication why social and economic justice should top the government’s agenda. The government should not be distracted from this goal.  To avoid derailment, attention must be paid to the unintended consequences of the various actions and policies being implemented. Surely, poverty would not be reduced by heaping and all kinds of expenditure on the poor. Though various forms of taxation increase revenue for the government, the local and central government should expect fierce resistance if they keep dipping into poor people’s pockets at every turn.

Historically, taxes and licensing fees have been used to marginalized various groups in society. In Guyana, these tools were used to maintain class structure through discriminatory policies.  Half a century of Independence did not change the fundamentals of social and economic marginalization. The persistence of the structures of inequalities and hostilities is captured in the unpublished play “The Deeds of State” in which one of the characters muses:

After all these decades of Independence, why are we still in this Gawd damn mess? Tell me why the seeds the slave masters planted in the back-dams of yesterday’s are still flourishing in the towns today:-  Vivian Williams’ Deeds of State

The usual response is that the two dominant political parties are maintaining the status quo but there is more to it than meets your eyes. In a forthcoming article I explain how organizational and social-structural anchoring are key contributors to partisanship in Guyana. Organizational basis of partisanship includes linkages to associations and institutions such as trade unions, that impact public opinion and political association.

In Guyana, trade unions are politically aligned and there are structural divisions within the workforce. Rural Indians are primarily employed in the agricultural sector and are represented by unions such as the Guyana Agricultural and General Workers’ Union (GAWU) and the National Association of Agricultural Commercial and Industrial Employees NAACIE. These unions are aligned with the PPP. On the other hand, Afro-Guyanese supporters of the PNC are concentrated in government jobs, represented by unions such as The Guyana Public Service Union (GPSU) and Guyana Teacher’s Union (GTU). These unions historically support the PNC which is the dominant partner in the current coalition government.

The organization and structure of Guyana’s workforce contribute to marginalization and partisanship in two ways. First, a government could discriminate against and marginalize an entire segment of the population through the adoption of policies and allocation of resources. The ongoing debate on how the previous government destroyed bauxite while propping up the sugar industry is a good example. In an article titled Do Suh Nah Like Suh, trade unionist Lincoln Lewis examined this issue. This is the reason why the current furor over the fate of the sugar industry goes way beyond mere economic considerations.

Dysfunctional organizational structures also contribute to the anchoring of partisanship in Guyana. Various institutions such as the trade unions, the private sector and even the media do not act as a check on the political elites or effectively convey to the ruling political elites, the real concerns and interests of their constituencies. Instead, they maintain the partisan status quo through narratives combined with ambient stimuli that compels political loyalty. This is one of the reasons why there is often a disconnect between public officials and the people they serve. With a top-down mentality, what passes as consultation often takes place in echo chambers. There is an absence of an effective mechanism for the views and priorities of people to work their way up to the top and be reflected in policy decisions. This has produced disenchantment on both sides of the political spectrum.

Walking on Eggshells: Prado Ville -Prosecuting the Top Brass of the Previous Government

 

When you consider that PPP demitted office with unemployment as high as 59 percent in its stronghold and the APNU/AFC took the reigns of power with as much as 50 percent unemployment in its strongholds, you would understand why the implementation of parking meters was met with fierce resistance. The most important task for the current administration is the dismantling of the structures of oppression and building new pillars of prosperity. For those people who have fallen through the cracks for decades, the government must toss a lifeline not stick its fingers in their pockets. When the government looks back it must do so to change to the fundamental wrongs that are holding people back and open gates to prosperity to masses. It is time!

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Walking on Eggshells: Prado Ville -Prosecuting the Top Brass of the Previous Government

By: Vivian M. Williams, Esq., LL.M

Flashback

It was the late 1990s and a near-sighted government, believing all it needed to govern was a mandate at the polls, was brought to its knees. Tear smoke filled the streets of downtown Georgetown as the government cracked down on dissenters, seeking to break the back of a resistance movement that had paralyzed the government in the capital and was quickly spreading to hotspots on the outskirts. Sirens of emergency response vehicles ruptured the peace and quiet at a constant rate. Members of the Fourth Estate stared down eyes of fear and felt the jitters of a nation on the edge of a precipice. Stifled by vengeance, anger, fear and uneasiness in the rising clouds of tear smoke and rebellious arson, people couldn’t see further than their nose and their government was blinded by power.

Vivian M Williams outside a New York Courthouse

The generation that matured in that time of conflict, has seen how quickly political arrogance ignites racial hostility. A generation before bears the scars of racial hostility in Guyana, a country blessed with beauty and natural resources. Guyana’s identity and character were forged out of resistance and rebellion. The country is a story of triumph over state sponsored oppression and excesses. Only briefly though, was there racial harmony. In the land of many waters, racial tension bubbles beneath the surface like red hot lava from the Soufriere Hill volcano.

Towards the end of the 90s, as a new millennium dawned, stubbornness, leftover-arrogance from the 20th century and a “we have power now” mentality had brought the government to a stand still and made the country ungovernable. The intervention of CARICOM and an accord known as the Herdmanston Accord, pulled the country back from the brink. Herdmanston provided a cooling period for the country to regain its balance. The stubborn and near-sighted government that fanned the flames of rebellion, continued to cling to power for almost two decade after Herdmanston. The people then transferred the mandate to govern to the opposition that led the resistance. So here we are today. The tables have turned but the tension and hostility that underpinned resistance are present. It is only the roles that have been reversed. The critical question though, is whether the “we have power now” mentality also persists.

Foreshadowing

If you look closely in the horizon you would see clouds of discontent, disquiet and resistance gathering in Georgetown. There is ongoing street protest by sugar workers, rice farmers and an influential upper/middle class group that is calling itself a citizens movement to terminate the introduction of parking meters in Georgetown. Uneasiness is brewing in the capital and the country side. On the surface, the tension and anger are nowhere close to what existed for the 23 years the previous government clung to power but there are clear signs that danger lurks just beneath the surface. President David Granger seems aware of a crisis that is brewing. Speaking to the nation’s security forces just after the mass arrest and questioning of the top brass of the former government, he cautioned:

“Threats might arise … from elements who wish to undermine internal security. Reckless remarks about an uprising and provocative calls for the mobilisation of foot soldiers have the potential to rip apart the fragile fabric of social cohesion that we enjoy” :- President David Granger

The truth is, what exist in Guyana is more like ethnic tension rising to the surface than a fragile fabric of social cohesion. Governments in Guyana like to windowdress the fragile state of racial harmony. They like to say it is not about race when racial sensitivity is always at the heart of it. It is in this context of seething anxiety and what appears to be an orchestrated campaign to pierce the veil of cohesion, that the government, moving to the beat of thunderous applause from hardliners, arrested and rounded up the top brass of the previous administration upon the allegation that they bought land below market value. The move echoes the deafness and arrogance that brought about the demise of the previous government. It leaves the country walking on eggshells.

Photo Courtesy of Kaieteur News

Even a political novice would tell you that when the economy in a plural society with a crack down the middle, is in crisis and tension and resistance are building, you do not inflame the situation by arresting or seeking to prosecute the entire top brass of your political opponent  ALL AT ONCE. The opposition commands about 50 percent of support from the electorate at last count and the cleavage is along ethnic lines. Under the circumstances, any attempt at mass prosecution or jailing of the top brass of the opposition will give rise to selective listening, selective retention and a strong dose of dissonance. It will result in a crisis.

Crises don’t just spring up from nowhere. They have a seed, a root and a stem that mutates into many branches that become uncontrollable. If you look beyond the horizon you will see the seed, the root and the stem of instability already swaying in the wind in Georgetown and the country-side. To push forward with its agenda and move Guyana forward, the government needs to extinguish the lingering threats before picking another fight. It is true that Opposition Leader Bharat Jagdeo and his henchmen ruled with an iron fist and showed signs of mercilessness in their dealing with opponents. He stirred up a great deal of anger among his opponents who would love to see him and all his henchmen hauled away in handcuffs but such a mass prosecution would grind the productive and economic sector in the Capital and countryside, to a halt. As much as Jagdeo and his henchmen are hated by their opponents, they are revered by the dominant ethnic group in Guyana.

Arresting Top Brass of  FORMEr Government NOT Prudent

Creating Hysteria:

Every government should take a tough stance against corruption but it should avoid unnecessary hysteria that could spiral out of control and result in the country being ungovernable. The mass arrest or rounding up of the top brass of the previous government will have exactly that effect. Everyone who has the slightest undertstanding of the enormous influence the two major political parties exert on their constituencies, know that supporters of neither party would sit back and watch the top brass of their party being hauled through the courts into a jail cell. It is the reason why the PPP avoided going after its political opponent when it was in power.

Reflecting on current tension U.S. President Donald Trump and his predecessor, Barrack Obama, U.S. presidential historian Douglas Brinkley puts it this way, “There are these kinds of things that have happened in the past, but nothing to the degree where a sitting president would charge his predecessor with a felony,” adding that “It creates a feeling of instability in the United States.” This is even worse in a society such as Guyana where there is deep ethnic division.

Undermining Government’s Agenda:

The political theatre that has seen the arrest and rounding of up Two former President and almost the entire top layer of the previous government will undermine the coalition government’s agenda. Coming at a time when the economy is floundering and the government is implementing austerity measures, this drama couldn’t have been more untimely. It is beyond dispute that major investors and even small businesses make investment decisions based on a forecast of their operating environment. If trouble or any disruption of the operating environment is forecast, investors will shrink their footprint in the economy.

The mass rounding up of the top brass of the former government gives rise to such a forecast and will result in the economy contracting further. The government is shooting itself in the foot by pandering to the extreme wing of its political base. No government benefits from even a fear of instability so it is difficult to comprehend why the Granger administration is stoking fears of instability. Anyone who believes rounding up the top layer of the previous government and dangling the prospect of a mass prosecution and incarceration will not stoke fears of instability is in deep sleep. In the end, the government will have to decide whether its top priority is to revive the economy, move the country forward and secure a second mandate or visit its political opponents with vengeance. The two spectrums of possibilities are not concurrent.

Reduces Likelihood of Success: 

The mass rounding up of political opponents is made worse by the extent to which it undermines the government’s own likelihood of success. Successful prosecution requires the commitment of significant resources. Even in wealthy countries with sophisticated prosecutorial resources, prosecutors do NOT pursue several high profile cases at the same time. Resources should be consolidated to adequately and effectively prosecute a case. That cannot be achieved, particularly in Guyana where resources are limited, by prosecuting a battalion of high profile politicians with deep pockets and the most competent lawyers in the country. When the pool of competent lawyers retained by these high profile defendants dries up, the government wounldn’t even be able to assemble a large enough team of competent special prosecutors even if it wanted to. A handful of special prosecutors cannot effectively handle all of these high profile cases.

Already, the state is bursting at the seams with the volume of litigation it is ensnared in. The government already has a significant docket of high profile cases that it is struggling to keep up with and there are other high stakes cases that could significantly impact the state, looming. While the government was rounding up the potential defendants its Attorney-General was being ordered to pay cost to his opponent in another high profile case brought against the state by embattled Chairman of the Public Service Commission, Carvil Duncan for what the Kaieteur News reports as unpreparedness in that case. According to the local newspaper, an affidavit which the court granted the Attorney-General leave to file over a month ago was not filed. You may also recall that the appeal of the decision on former President Jagdeo racial incitement case was dismissed because of blunders in that case. These events are indicative of the extent to which the government’s ability to cope with the burden of litigation, is stretched thin. Adding more than a dozen high profile and high stakes cases to the docket, all at the same time, is a poorly thought out strategy.

Parked in a Legitimacy Gap: Why The Georgetown Parking Meters Controversy is a Political Millstone

There comes a moment in time when a government must turn its gaze to the future.  There is that moment when history must serve as the beacon for a people to clear the path to prosperity not as a sword of vengeance. As a beacon, history is potent and valuable. As a sword of vengeance, history could be destructive and counter-productive. In divided plural societies, political leaders are under tremendous pressure to pull hard towards the extreme wing of their base, pandering to anchors of partnership. If the APNU/AFC government pulls too hard to the extreme right, it could unwittingly open the crack down the middle, leaving a gap so wide, it would be impossible to reconcile. The applause, laughter and excitement could quickly be replaced by despair. It is imperative that the government tackles corruption with a tough hand but it should focus on now and the future. If it keeps looking back it may end up like Lot’s wife.

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Parked in a Legitimacy Gap: Why The Georgetown Parking Meters Controversy is a Political Millstone

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By: Vivian M. Williams, Esq., LL.M

The municipality, except for a renegade Deputy Mayor, says the introduction of parking meters in Georgetown, Guyana’s capital city, is a necessary leap into modernization. The Private sector, citizens, and activists call the move inhumane, callous, corrupt and a blight on a struggling economy. This gap between what the City thinks of the initiative and stakeholders’ opinion, is know as a legitimacy gap. It shouldn’t take much brainstorming to recognize that The City  Council is in the grip of a legitimacy gap that is widening with each passing day. The failure to properly manage the crisis would have already cost Mayor, Patricia Chase-Green her job in a normal democracy. If the Mayor and her Councillors recognize that a legitimacy gap is a serious threat to their viability, they would act more decisively to bridge the gap. They seem quite comfortable, parked in the quagmire.

StoneWalling and Counter Protest Add Fuel to the Fire

The only sustainable solution to a crisis forged  out of a legitimacy gap is to bridge the gap through informed persuasion. The Council eschewed this approach, instead, hunkering down with some old- fashioned stonewalling, recoiling in secrecy. As speculation spread about what is contained in the heavily guarded contract, the issue developed into a wicked problem. The City has allowed opponents of the project to spin the issue out of control. The project is now ensnared in legal action and protest that resulted in its suspension.

Stonewalling and counter-protesting might be useful strategies in some circumstances but when there is a legitimacy gap, they are not helpful. More meaningful engagement was needed to bridge the public opinion gap. The decision to hide behind secrecy and shout down opponents created a crisis of trust and fanned the flames of resistance. Keeping the details of the contract under lock and key is a blunder that added fuel to the fire. As soon as signs of uneasiness with the terms of the contract emerged, the City should have addressed issues pertaining to the terms of the contract with clarity, consistency and transparency.

It is not too late for Mayor Chase-Green and her Council to recognize that a legitimacy gap is created by differences in facts, values, or policy. Some times if you fill the information vacuum the problem goes away. The Mayor allowed her opponents to fill the information vacuum she created, with what she calls misinformation while she recoils in secrecy. She blames her renegade Deputy Mayor for the confusion, but the Council created and nurtured the ideal condition for a misinformation campaign to undermine its effort.

The parking meter issue emerged in mid 2016, not as an outright rejection of the introduction of paid parking in the City but rather, there was dissatisfaction with the manner in which the contract was entered into.  At this early stage, Mayor Chase-Green could have extinguished the controversy by adopting a more transparent and accountable approach. What the Council did instead, was put the lid on transparency and accountability,  deepening the crisis.

Responding to protest with counter-protest is a clear indication of a lack of understanding of the problem. A combative stance doesn’t help to bridge a public opinion gap. It helps to fortify existing public opinion and widens the legitimacy gap rather than create movement towards consensus. The refusal by the Council to have a high level spokesperson present at a public forum held on February 18, 2017 to address public concern, is another indication of the adoption of old-school tactics that are not relevant today, at least not when a legitimacy crisis is brewing. It the failure to apply elementary crisis management principles that has caused the City to park itself in a legitimacy gap.

Tyrants on the Loose: Trump’s Immigration Ban & Deportation Coming to A City Near You

DUE PROCESS AND THE PRESERVATION OF THE RIGHTS OF THE PEOPLE

When a movement by the people, for the people rises up to challenge Executive excesses, it is important that it pursues its goals without compromising individual rights and guarantees. The inadvertent dismantling of constitutional guarantees could be more detrimental than the impact of a cause that gives birth to a movement.

The law suit against the Mayor, Councillors of Georgetown and Town Clerk to void the Parking Meter Contract, brings the issues of preserving guarantees while pursuing rights, into sharp focus.

The suit against the City excludes the company that entered into a public/private partnership and holds the contract with the City. As a party to the contract, Smart City Solutions has a vested interest in the outcome of the litigation and is entitled to constitutional protection of due process. It is therefore, a necessary and indispensable party.

A party is indispensable when his rights are so connected with the claims of the litigants that no order can be made without impairing such rights. Necessary parties are those whose presence, while not indispensable, is essential if the Court is to completely resolve the controversy before it and render complete relief. Should an absent party be necessary or indispensable that party must be joined for the court to have jurisdiction.

Smart City Solutions has a legally protected interest in protecting its property interest in the contract and its investment in the project. Any judgment that substantially impacts the contract would be unenforceable and unconstitutional as against Smart City Solution which is not a party to the action. Anything to the contrary would be an appalling affront to the principle of due process of law which the movement by the people, for the people, should not be championing. Here is a question to consider:

If an injunction or order is issued against the Mayor and City Council could Smart City Solutions which is not a party to the action be held in contempt if it engages in conduct that is contrary to an order or judgment that is not directed to it, in proceedings that it was excluded from?

Failure to CONSIDER the Circumstances of the Time

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Unemployment Rate in Georgetown was sky high when coalition government took office. Chart tabulated from official government data

Parking meters will extract fees from a population that is struggling to make ends meet. When the new government took office, unemployment in some of the most affluent areas in Georgetown, was sky-high. Data tabulated from official government records reveal an almost 50 percent unemployment rate in areas such as Tucville, where the Council and the ruling coalition draw solid support. In Queenstown, unemployment was pegged at 44 percent when the Coalition took office.

Mayor Chase-Green is adamant that she is moving the city in the right direction but the introduction of parking meters comes at a time when there seems to be consensus that the economy is struggling. The project could be the straw that breaks the camel’s back for struggling families. It highlights a fundamental flaw in the way the coalition government handled the transition of power from its predecessor. It failed to properly benchmark the state in which it took over the country. Though a series of audits were conducted, the findings were not used to highlight the state of economic fundamentals.

The new government focused on numbers instead of paying attention to the economic fundamentals and key performance indicators. Instead of going beyond the numbers to craft a qualitative message that emphasized weaknesses in the economic fundamentals, it got carried away with campaign rhetoric. Consequently, the government failed to make the case to the people that it assumed the reigns of power under challenging times. It has failed to make the case to its constituency to buckle up for tough times and make a passionate plea for patience in times of challenges. Mere resort to slogans such as “a good life for all” is not enough in tough times. To be effective, elected officials must craft and properly articulate a clear vision for prosperity that resonate with the people.

Under the circumstances, the adoption of a bombastic approach with a top-down communications approach, resulted in the City Council being viewed as insensitive to the plight of the people. This resulted in ridicule of the Mayor. If the Council had effectively marketed a new vision of a prosperous and modernized city, using informed persuasion and collaborative sensemaking, the parking meter project would have been in better shape. The controversy was brewing for almost a year before the implementation of the project, yet the City and its private partner seem to have no crisis management plan. Worse yet, no effective crisis communication strategy has been displayed. They are just parked in a legitimacy gap, waiting to be clamped or perhaps booted by the people.

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Tyrants on the Loose: Trump’s Immigration Ban & Deportation Coming to A City Near You

Refugee men and fence

Refugee at Fence (Copyright Protected)

By. Vivian M. Williams, Esq, LL.M

When a federal appeals court looked beyond the four corners of President Trump’s Executive Order on Immigration, which bans immigrants to the United States from 7 predominantly Muslim countries, it strengthened the pillars of a constitutional democracy. The case reminds citizens of the world that governments don’t enjoy unfettered discretion to infringe individual’s rights and liberties through a mere assertion that national security is at stake. It is a moment for the judicial branch in small democracies to take note of the important role the judiciary plays to tame tyrants on the loose.

A mere week into his Presidency, his Attorney-General still not confirmed, the President of the United States made a bold and sweeping exercise of executive power. His travel ban tested the boundaries of executive authority. Implementation of his Order resulted in the exclusion and detention of immigrants from a handful of Muslim countries, who sought entry to the U.S. Federal courts came to the rescue of scores of green card holders, visitors, academics and refugees affected by the ban, putting a halt to its implementation. The government made a frantic attempt to reinstate the travel ban but it was denied by a Federal Appeals court. Instead of reinstating the Order, the Court delivered a stinging rebuke.

NO Unfettered Discretion when Individual Rights are Infringed

The government mistakenly believes its action is not subject to judicial review because it has unfettered discretion to exclude classes of aliens from entry into the United States. The administration relies on textually demonstrable language that seems to give the President untrammeled discretion to exclude categories of immigrants from the United States. However, it is well settled that courts review executive discretion for abuse when it abridges individual rights. The chaos at airports when the ban was rolled out, is evidence of the abridgment of particularized, concrete and judicially cognizable individual rights.

In denying Mr. Trump’s request to be permitted to proceed with his exclusion order, the court noted that the government erroneously takes the position that the President’s decisions about immigration cannot be reviewed, even if individual constitutional rights are contravened. This is a fatal error that the government is not likely to overcome. The Executive Order also has no provision for due process and contains religious tests that run afoul of the Constitution.

Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision

Bald assertion of National Security Interest not Enough When Individual Rights are trampled

While great deference is usually given to the Executive in cases of national security, mere reference to national security is not enough to shield the government from scrutiny. The court puts it nicely in rebuking the most powerful man in the world. It reminded him that the Constitution of the United States is a law for rulers and people, equally in war and in peace. The Court therefore, rejected the government’s efforts to move forward with the travel ban without providing evidence of a legitimate national security urgency. Reaching back more than 50 years the court invoked a precedent from the U.S. Supreme Court to get the message across to the President of the United States, that the Executive doesn’t have unrestricted freedom of choice simply because a statute deals with foreign affairs.

National defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal… It would indeed be ironic if, in the name of national defense, [the court] could sanction the subversion of one of those liberties… which make the defense of the Nation worthwhile.

From time immemorial, the High Court has signaled to overzealous Executives that executive authority should not be viewed as a chisel placed in the hands of the President to chisel away at other fundamental aspects of the Constitution, in a self destructive way. The Constitution is the plank upon which a nation rest so the destruction of it is a threat to the county’s viability. The Court therefore determined that the government cannot merely assert national interest when its actions collide with particularized, concrete and vested individual rights.

Some legal analysts bristle at the idea that the government must come forward with some evidence of imminent danger before implementing a sweeping infringement of individual rights. National Review staff attorney, David French believes the court issued a dangerous ruling.  In an article titled The Ninth Circuit Just Issued a Dangerous Ruling Against Donald Trump’s Immigration Order, he writes:

The President doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike.

The ruling against the Trump administration is NOT inconsistent with the concerns raised by French. Courts have consistently held that when executive action collides with fundamental rights, at minimum, the government must establish some rational or reasonable basis for regulation. The court repeatedly asked the government to establish that nexus and it didn’t. A mere bald assertion of national interest or defense is NOT enough. Courts have also insisted that regulation must be narrowly tailored so that the abridgment of individual liberties is no more than what is required to achieve the legitimate goals of the government. As the bulwark of democracy and liberties the court must ensure that one branch of government is not parasitic to the principles and values a country is founded on.

Trump’s Immigration Stance- A Global Threat Coming to City Near You

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JFK Protest of Immigration Ban – Photo Courtesy Dr. Dhanpaul Narine

Immidiately after the attempt to reinstate the travel ban was denied, massive immigration raids were launched in major cities across the United States. Anxiety in immigrant communities is not restricted to Middle Eastern Muslims. Immigrants from everywhere are losing sleep at night and soon societies everywhere will feel the impact of Trump’s aggressive immigration stance when plane loads of deportees start touching down.

Mr. Trump is adamant that he will scrape the bottom of the immigrant barrel and return the trouble makers to their native land. Many of the so-called trouble makers are products of America with little or no ties to the country they will be returning to. Governments that are sitting back thinking Mr. Trump’s immigration stance is a Middle Eastern problem, should brace themselves for the exportation of America’s problems to their shores.

Forwarding thinking regimes should get busy crafting legal and diplomatic strategies to slow the pace at which America will dump its rotten apples upon their shores. Those that are in the habit of accepting deportees without resistance need to begin reassessing that policy and build a resistance movement against Mr. Trump’s aggressive deportation stance.

Rising levels of deportation did not start with President Trump. His predecessor was once dubbed the Deporter-in-Chief. This is a problem that has been lurking for some time and now the global threat is coming to a City near you. Regions such as the Caribbean Community that are bursting at the seams with social problems, should use the occasion to renew push for greater social assistance from the United States.

The world didn’t suddenly get to the point where citizens’ revolt became the order of the day. At the turn of the century dissatisfaction among citizens in every region, reached a staggering level. In 2002, the Pew Research Center found citizens’ dissatisfaction with the state of their country in regions such Europe, Latin America, North America, and Asia, consistently jotted above the 80 percent mark.

Trump’s defeat of his establishment opponent, Hilary Clinton, to become the Leader of the free world is heralded as a paradigm shift in global politics. His controversial Executive Order was resisted by a global movement that saw massive protest in the far corners of the world. The taming of his executive excesses by the judicial branch should echo through democracies across the globe. Constitutional democracies near and far, should look within their national boundaries to tame tyrants on loose and brace for impact of The Donald.

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Pandora’s Box: Requesting New List of GECOM Nominees A Dangerous Precedent

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President David Granger

By: Vivian M. Williams, Esq., LL.M

When Guyana’s President David Granger requested a second list of nominees for Chairman of the country’s Elections Commission (GECOM) from the Leader of the Opposition, he extended an olive branch and created a dangerous precedent. The submission of a list of nominees is a one-shot deal. The Constitution does not provide for the submission of a second list. It contains a provision for the President to make a unilateral appointment if a list of “fit and proper” nominees, not unacceptable to the President is not submitted. Mr. Granger found the list submitted to him unacceptable, apparently concluding it does not meet the “fit and proper” constitutional requirement. This should have triggered the provision authorizing the President to move forward and unilaterally appoint a Chairman.

Misconception and the Olive Branch

There is a misconception that the Constitution provides for a second list to be requested. It gives no such authority or discretion to the President.  Take a look at what the Constitution states:

… if the Minority Leader fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge…

The use of the word “shall” instead of may should NOT be glossed over. When the word Shall is used in legal instruments, it serves as a command that takes away discretion. On the other hand, “may” confers a discretion. If the architects of the Constitution wanted to confer a mere discretion, they would have used the word “may”. They instead inserted  a command, which President Granger did NOT follow in this case.

The Constitution gives the President two consecutive options. First, the President is obligated to make a finding on whether the List satisfies the constitutional requirements. If it does, he is obligated to appoint a Chairman from one of the nominees. If the List does NOT satisfy the constitutional requirements, then the Constitution instructs the President to unilaterally appoint a Chairman. There is no provision for the President to rewind the process by requesting a new list. Though this  olive branch reflects consideration of the rancid  political reality in the country, it is a frolicked departure from the Constitution.

Fit and Proper: An Unnecessary Fight

Pandora’s Box: Requesting New List is a mistake

The request for a new list opens a pandora’s box and sets a dangerous precedent. There is now an expectation that if an obnoxious list is submitted by the Opposition Leader, an opportunity would be provided to submit a new list. This could lead to abuse by an Opposition Leader who may use the initial List to test the President and create confusion. Future denial of an opportunity to submit a new list would also cast the sitting President in a bad light. There is also the issue of when the President could invoke the authority to unilaterally appoint a Chairman. If he finds a second list unacceptable is he obligated to request a third?

In light of the political climate in the country, President Granger’s hesitance to invoke the power to unilaterally appoint a Chairman is commendable but his approach is imprudent. Instead of rejecting the List and requesting a new one, the President should have offered the Opposition Leader an opportunity to withdraw the list and submit a new one. The withdrawal would have forestalled the constitutional command to unilaterally appoint a Chairman by putting on hold, the rejection of the list. In this way Mr. Granger would have achieved the goal  of extending an olive branch and demonstrating good faith and awareness of the political sensitivity of the matter without acting in contravention of the Constitution. Failure by the Opposition Leader to accept the offer should have then resulted in a rejection of the List and unilateral action by the President.

The olive branch could have been a strategic play that puts the Opposition Leader on defense and keeps the focus on the quality of the list he submitted. It was an opportunity for the President to control the narrative. Instead, he is allowing his opponent to frame the issue and influence public opinion. The Opposition Leader has managed to shift atttention from the quality of the list submitted to the Constutionality of the  President’s action. His chief legal advocate, Anil  Nandlall, has pounced on this opportunity. The former Attorney-General is now making a presumptuous claim without any resistance from the Granger government. Here is what he is asserting in his own words:

“The Constitution speaks only to one list. A list of six names. A list of six names has been submitted, so the constitutional requirement in terms of a list has been met. What the President has rejected are the six names so six new names have to be supplied to be placed on that same list. For the purposes of the proviso which states that in the event that there is no list that the President can act, that Proviso cannot be triggered in this instance because there is a list:”- Anil Nandlall

Mr. Nandlall’s assertion that the President can only act unilaterally if NO list is submitted, is a very poor reading of the Constitution. The triggering condition for unilateral action by the President is failure to submit “a list as provided for“. What is provided for is not just a list of names but rather a list of “fit and proper” nominees, not unacceptable to the President. Nandlall is in La la Land dreaming that the Leader of the Opposition could keep providing names that are unacceptable and the President would be obligated to request new names. It would be prudent for him to advise his client to walk carefully on the olive branch extended to him. In a previous article I outlined why Mr. Nandlall, a fierce legal advocate, is  Dancing on Black Ice with his client.

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Fit and Proper: An Unnecessary Fight

President David Granger

President David Granger Rejected a List of Nominees for Chairman of GECOM

By: Vivian M. Williams, Esq., LL.M

When a moment in time presents an opportunity for a historian to leave foot prints in the sand, you expect him to seize the moment. The rejection of the list of nominees for Chairman of Guyana’s Elections Commission (GECOM), presented such an opportunity to President David Granger and he demurred. Mr. Granger traded a legacy-making moment for lasting controversy. It boils down to three simple words “fit and proper” and the clause “not unacceptable to the President“, contained in Article 161 of Guyan’s Constitution.

Vivian M Williams outside a New York Courthouse

In rejecting what is being referred to as former President Jagdeo’s obnoxious list of nominees, Mr. Granger could have simply outlined his objections in terms of the acceptability of the list to him. In a previous article, Dancing on Black Ice, I explained that the acceptability clause is a subjective veto power vested in the President. This is the apex of his authority. Mr. Granger could have pellucidly establish rational principles in a subjective sphere. Indeed, it is the first time that an entire list was rejected.

The President has the authority to reject the List and he acted within his authority in doing so. However, all of the objections raised, such as qualification, experience, partiality and partisan posturing, are grounds for rejection that fall within the subjective realm of acceptability to the President. So the President could assert that he finds the List unacceptable because of any of the reasons given. That is NOT the route the President took. Instead, he asserts that the nominees are not fit and proper and attempted to define fit and proper.

Defining fit and proper could be put to an objective test that is murky and contentious. Therefore, it presents what is known in law as a hard question. Mr. Granger, the feisty General he is,  stepped down from the apex of his authority into the murky swamp of political controversy to fight an unnecessary battle with his political foe. Controversy flared because the administration is ignoring a basic principle of law and life -if a dispute could be resolved by answering an easy question, resolve the dispute and leave the hard questions for another day when it is necessary.

Because of political sensitivity, the appointment of a Chairman of GECOM is not merely a legal matter. It is a matter for which prosecution in the court of public opinion is more important than prosecution in a court of law. Former President Jagdeo knows this. He is using the brouhaha to reinforce the anchors of partisanship that have defined the nation’s politics for all its life.

Mr. Jagdeo’s party left as a footnote in history, the narrative that Mr. Granger’s party has never won a free and fair election. Now he is using a fumble by Mr. Granger to amplify that narrative and set up a future play.

Interpreting “Fit and Proper”

The proposition that the “fit and proper” list criteria requires nominees with judicial experience, turn on the application of an obscure legal principle known as ejusdem generis. In some and substance, the President argues that references to judges that come before and after the fit and proper requirement, define that criteria. This reliance on the ejusdem generis principle is misplaced.

Ejusdem generis is a cannon of legal construction that states, where general words follow  the enumeration of particular classes of persons or things, general words will be construed as applicable only to persons or things of same general nature or class as those enumerated.

Legal analysis that look merely to the definition of a legal cannon for its applicability, is elementary. Proper legal analysis requires an assessment of the requirements that trigger the application of a legal principle. Here are the five conditions that must exist concurrently for ejusdem to be triggered:

  • (i) an enumeration of specific words;
  • (ii) the subjects of the enumeration constitute a class or category;
  • (iii) the class or category is not exhausted by the enumeration;
  • (iv) the general term follows the enumeration; and
  • (v) there is no indication of a different legislative intent.

The most significant of the five ingredients of ejusdem is the non existence of a contrary legislative intent. That requirement along with the ingredient of a non-exhaustive  class or category are missing from Article 161(2) of the Guyana Constitution. The class enumerated is in fact exhausted. Take a close look at the law and you would see that where it talks about judges, the class of eligible people is finite.  The ejusdem generis principle is only applied where there is an incomplete enumeration so that the general words that follow is part of a continuum. That is not the case in Article 161.

The law is well settled in various jurisdictions that the use of words such as “or” and “other” reflect an intention to enlarge the category of persons or things to choose from, not confine it. The combination of the words “or” and “any other” in Article 161(2) is a manifest intent to enlarge the class of persons to choose from NOT restrict it.

Fit and proper is always used in the context of the role you are being considered for. In this case, that role is Chairman of the Elections Commission. If the drafters of the Constitution wanted to enumerate  those qualities, they would have done so, not through deductive reasoning. The argument you are hearing is an attempt to use deductive logic to enumerate qualities the framers of the Constitution did not attempt to enumerate.

Just think about it for a while. The skill sets required for the task of Chairman of GECOM may evolve with time and society. The enumeration of such skill sets in a finite manner may be counter productive for future generations. This must be one of the reasons why the drafters of the Constitution did no such thing. It should be clear that the President might have prudently and rightly rejected the List of nominees. However, the issue is not the “what” it is the “how”.

Fit and Proper has Historical Context

Why would a historian interpret a constitutional provision, rich in history, by ignoring its historical origin and moorings? The intent and spirit of the “fit and proper” requirement are embodied in its history not a fuzzy linguistic tool.

Prior to 1991 the President unilaterally appointed a Chairman of GECOM but was constrained to appoint a jurist or someone qualified to serve as a jurist.  This arrangement was considered ineffective and controversial and was suspended in 1991 to allow for a list of  fit and proper nominees submitted by the Minority Leader. Legislative intent for the 1995 amendment is rich and plenty.

The “fit and proper” list criteria was crafted as a curative measure for a provision that was deemed ineffective. It is a new specie not a clone of what came before it. For three decades after its adoption, the List criteria was interpreted and applied as an enlargement of the class of persons to choose from. Now, here comes an interpreter three decades later, suggesting that those who were in the thick of things, with hammer and chisel in hand, carving  this piece of law, really didn’t know what they intended.  To rely on ejusdem generis now is to reach back in time and attach a provision of the Constitution to a past it broke from.

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Dancing on Black Ice Part II: The Reply to Nandlall on the GECOM Brouhaha

Grown accustomed to a nuanced application of legal principles from Guyana’s former Attorney General, Anil Nandlall, I was disappointed by his response to my article Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision. Though his article, The President is Not Above the Law was published as a response, the former AG resorts to sweeping recital of general legal principles without relating those principles to the specific facts and the legal conclusions that are in contention. Even the caption of his response is deceptive. Any perceptive layman knows that the President is NOT above the law when he is acting pursuant to powers granted by the supreme law of the land. Nevertheless, lets examine Mr. Nandlall’s arguments, highlighted below.

Make NO mistake: Courts are not Imbued with Unlimited Jurisdiction

Vivian M Williams outside a New York Courthouse

Below is one of the arguments made by Nandlall. It sounds good at a glance but let’s take a look at it.

The non-justiciable argument is a relic of a bygone era and owes its genesis to certain aspects of the Royal Prerogative which were beyond the reach of the judiciary and not amenable to its review. This concept has no place in a legal system where the Constitution is supreme and where the judiciary is its guardian and imbued with an unlimited jurisdiction not only to ensure that it remains supreme but to strike down any law or actions which not only violate or are inconsistent with it but also which seek to question or undermine its supremacy:- Anil Nandlall

Make no mistake, the judiciary is NOT imbued with unlimited jurisdiction in a constitutional democracy. Jurisdiction is legal jargon for authority. If the judiciary is imbued with unlimited authority then there would be judicial tyranny. Judicial tyranny is certainly not a cure for the ills of executive tyranny. In a constitutional democracy, courts must understand the limit of their authority and not overstep it. The political question doctrine and the principle of nonjusticiability are bridles placed on the judiciary that hold it in check so that the Constitution, NOT the judiciary, is supreme.

A constitutional democracy is built on the principle of separation of powers where power is distributed to the Executive, Legislative and Judicial branches, each exerting a check on the other. Because the judiciary can exercise no more authority than what is granted to it, in some instances, judicial inquiry is restricted to whether the court has or doesn’t have the authority to decide the substantive issue of a case. That is what is meant by nonjusticiability. It is not an abdication of the responsibility to interpret the Constitution. Instead, the interpretive role played by the court is restricted to a determination of whether another branch of government is assigned exclusive authority. That was the case in Nixon v United States, an instance where the U.S. Supreme Court recognized that the legislative branch, not the courts, was empowered to decide the substance of the matter at hand.

Textually Demonstrable Language COMMIT Matter to the President

Just pause for a moment. Consider this other argument from Nandlall “If Mr. Williams is right, it means that the President is above the Constitution and therefore the President is supreme and not the Constitution.” It is a Fallacy. The President is NOT elevated above the Constitution because I interpret Article 161 as having delegated to him, the substantive determination of the suitability of a nominee to serve as the Chairman of the Guyana Elections Commission (GECOM). The Constitution is the fountain from which the President draws his power. Therefore, how could he be supreme when he is taking a sip of that authority?

In my previous article I outlined why asking the judiciary to interpret the meaning of “fit and proper” in Article 161 is an exercise in futility. If properly litigated, the case should be dismissed because the court should interpret Article 161 as a delegation of authority to another branch of government. This is the reason why the U.S. Supreme Court in Baker v Carr and Nixon v. United States, as recent as 1993 stated:

A controversy is nonjusticiable where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it ….” These two concepts are not completely separate; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.

We circle right back to the argument I put forward in Dancing on Black Ice. There, I argue that Article 161 contains textually demonstrable language committing the appointment of a Chairman of GECOM to the President. I further point out that the overriding subjective veto conferred upon the President, results in NO judicially discoverable and manageable standards for resolving a dispute arising from a rejection of a list of Nominees, without judicial overreach. Responding to my argument, the former Attorney General fails to address this threshold question. Instead, he opted for a generalized recital of principles of law, mixing falsehood with truth to create a kurfuffle.

Appointment of A GECOM Chairman NOT Suited for Judicial Review

A significant rationale that underpins the political question doctrine is the need for finality and effective functioning of the state. The doctrine recognizes that certain ministerial functions must be performed expeditiously and with finality. The preservation of the state itself may be impacted by a lack of finality. Appointment of a Chairman of the Elections Commission is one such matter.

Let’s take a look at the practical implications of judicial review in this sphere. Judicial review is a long process that could take months and some times years. Even when a decision is made by a court of first instance it may be appealed until the case makes its way to the court of last resort. This means, the mere ministerial function of appointing a Chairman could be delayed for months and even years. Worst yet, a Chairman could be appointment and then find his appointment revoked by an order of the court. Consider the chaos that would befall the state.

Consider the fact that repeated appointments could be challenged and each challenge having to make its way through the judicial process. Consider too that a vacancy may arise months before an election as a result of incapacitation or death of a GECOM Chairman. When you add judicial review to the mix, you would see how pivotal the political question doctrine is to a democracy. President Granger has already complained that the delay caused by the brouhaha, could impact the Commission. I hope you see why the Constitution gives the President an overriding veto. Nandlall retort is:

No legal system in a society where the rule of law prevails will ever countenance an absolute discretion, irrespective of how unfettered it may, ex-facie, appears:- Anil Nandlall

He overlooks the argument put forward in Dancing on Black Ice that his reliance on the general principle that NO discretion is unfettered is NOT applicable in this case because NO vested individual right is involved. I explained that the law has carved out an exception to this rule when individual rights are NOT implicated. This was illustrated in Zivotofsky v Clinton, when the U.S. Supreme Court sidestepped the political question doctrine because a vested individual right was affected. Ignoring the nuances of the law, the former AG makes the erroneous assertion that “The non-justiciable argument is a relic of a bygone era… (and) has no place in a legal system where the Constitution is supreme. The presentment of this argument by Mr. Nandlall betrays a growing perception that he is among a new generation of Guyana’s foremost constitutional scholars. Not only is it wrong, it reflects a lack of understanding of governance in a constitutional democracy.

Nonjusticiability is a Pillar of Constitutional Democracy

Known as a bastion of Constitutional Democracy with a Constitution fashioned as a repudiation of Royal Perrogatives, the United States is a chief architect of the political question doctrine and the principle o f nonjusticiability. It is the U.S. Supreme Court that says  “the nonjusticiablity of a political question is primarily a function of the separation of powers“. The U.S. is a Constitutional democracy as Guyana is. The U.S. is a common law jurisdiction as Guyana is.

Dancing on Black Ice asserts that the analytical threads that make up the political question doctrine are contained in Article 161 of the Guyana Constitution. Nandlall’s non-responsive opposition to this assertion, offers not one word to challenge it. There is indeed a sliver of cases that falls within this doctrine. This does NOT mean that when it presents itself in Guyana litigants should scream it is dead because of its rarity.

Here is the bottom line, the political question doctrine is not an affront to a Constitutional democracy. As contentious though it may be, it is NOT a relic of a bygone era. It is a pillar that supports a Constitutional democracy. How could it be lost upon any of us that it is a tool created by the judiciary itself to guide its quest to zealously guard the constitution without trampling it? A guard cannot break the vault under his watch then scream “I am the guard”!

 

Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision

It is hard to think of a more flawed interpretation of an expressed constitutional provision than what we are currently witnessing in the feud over the selection of a Chairman of the Guyana Elections Commission (GECOM). Current President David Granger offers a baffling interpretation of the Constitution and former President Bharrat Jagdeo treats us to a juvenile understanding of the Supreme law of the land. The controversy that is brewing may not have occurred had Mr. Granger handled the matter judiciously but, be that as it may, the response from the parliamentary opposition is a perilous waltz on slippery ground.

Vivian Williams P.C.

Result-Orientated

Legal Representation

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Misguided threat to seek Judicial intervention

Jagdeo bristled at the rejection of the list he submitted to the President, threatening litigation and declaring that the Caribbean Court of Justice should be the arbiter. The threat to litigate the rejection of the List of nominees for the Chairman of Guyana’s Elections Commissions, is misguided. The selection of the Chairman of the Elections Commission by the President is nonjusticiable. Nonjusticiable matters are those that the judicial branch cannot impose a remedy on the executive under the separation of powers doctrine. No court could compel the President to accept the list of nominees submitted to him. This is one instance where authority delegated to the executive, is outside the reach of the judiciary.

Even in countries such as the United States, there are categories of cases that are excluded from judicial review. The political question doctrine is a canon of statutory and constitutional interpretation that restrains courts from enquiring into the exercise of authority by the executive. The simple fact  is this, there are instances where the discretion of the executive is absolute. The selection of the Chairman of the Elections Commission is one such case. The President is the ultimate arbiter not the court. No judge could overturn his decision or direct his action.

Why the Issue is NonJusticiable

It is clear from the reading of the Constitution that the selection of a Chairman of GECOM is outside the purview of the courts. It is in the realm of the political question doctrine not individual rights. There is overwhelming precedents crystallizing the principle that a court can never be called upon to be the umpire in questions that are merely political in nature. Political question cases are those that involve issues that are delegated to the executive for resolution. They are also characterized by the absence of manageable standards by which the judicial branch could serve as umpire. A clear test is whether the judicial branch could provide cognizable and meaningful remedy without usurping authority delegated to another branch of government.

In the case of the selection of the Chairman of GECOM, the Constitution delegated authority to the President with utmost clarity. It is an issue unequivocally delegated to the President for resolution. Article 161 is clear that the President “shall” appoint the Chairman. As to who the President may appoint and how the appointment is made, Article 161 commits the issue to the President as the ultimate arbiter. Even where it outlines the required qualifications for appointment, it defers to the President, stating that not withstanding the requirements, the List must not be “unacceptable to the President”. This means that even a list that satisfies the “fit and proper” requirement could be rejected by the President. Bottom line- the court cannot order the President to accept any list of potential nominees. Surely, this is a case where the principle of judicial deference also applies.

It is also clear from the wording of the Constitution that there is NO manageable standard by which the court could resolve a dispute. Former President Jagdeo and Former Attorney-General Anil Nandlall are glossing over the part of Article 161 which states “not unacceptable to the President”. This clause introduces a highly subjective element that does two things. First it renders the discretion of the President absolute and secondly, and perhaps more critically, it gives rise to the absence of manageable standards for judicial intervention. No judge could enter the mind of the President to determine what is or is not acceptable to the President. Critically, NO judge could impose his or her own standard of acceptability upon the President. This is the essence of what constitutes a nonjusticiable matter –impotence on the part of the court to fashion a remedy.

It is important to note that historically, the Constitution vested the President with sole and unilateral authority to appointment a Chairman of GECOM. This is indicative of the political question doctrine outlined above. Further, when the Constitution was amended, it retained the authority historically vested in the President as the ultimate arbiter with the controlling clause “not unacceptable to the President”. The PPP was in power at the time of the amendment and controlled a majority of seats in Parlaiment. The PPP therefore, opted to retain the broad delegation of powers vested in the President, so it has no moral standing to complain now. Article 161(2) is a creature of the PPP that has come back to haunt.

Former AG Misapplies Doctrine of Check on Abuse of Discretion

Ignoring the nonjusticiable nature of the controversy, former President Jagdeo declared that the matter should be decided by the Caribbean Court of Justice. The assertion reflects a more juvenile than profound understanding of Guyana’s Constitutional jurisprudence from a man who has been the country’s chief constitutional officer for more than a decade, perhaps an indication of how lightly the constitution has been taken. It is rooted in an unusual misapplication of legal principles by former Attorney General Anil Nandlall, who has emerged as the PPP’s chief legal adviser. Nandlall presents the following flawed arguments in letters to Kaieteur News and Stabroek News, titled  The Powers of The President Under Article 161  and The Constitution Lists two Categories of Persons Eligible to become GECOM Chairman. The flawed arguments are highlighted in bold type.

  1. Judicial Intervention is necessary because President Granger’s rejection of the list submitted to him, is based on an erroneous interpretation of the Constitution-his apparent failure to consider the “fit and proper” qualification stated in article 161: The President’s interpretation of “fit and proper” does not turn a nonjusticiable matter justiciable. The former AG is overlooking the fact that even a list of fit and proper nominees could be rejected by the President. Though the “fit and proper” requirement is an objective test, its objectivity is subordinate to the subjective requirement that the list must not be “unacceptable to the President”. By rejecting the list, the President has asserted that it is unacceptable to him. The reason for its unacceptability is immaterial since its is not a controversy for which there is a judicial remedy.
  2. It is only in the event that no list is submitted by the Leader of the Opposition that the President has a power in Article 161(2) to make a unilateral appointment: This is another argument that is without merit. The Constitution expressly provides for the President to appointment a Chairman of GECOM if the list submitted to him does NOT satisfy the requirements of 161(2). The most critical requirement is that the List must not be unacceptable to the President. Therefore, if the List is unacceptable to the President it does NOT satisfy the 161(2) requirement, triggering the President’s discretion to unilaterally appoint a Chairman. You might have heard talks that the Constitution provides that if the List of nominees is rejected a new List may be requested by the President. There is NO such provision in the Constitution.

    What the Constitution states is that if the Minority Leader fails to provide a list as provided for, the President shall appointment a Chairman of GECOM. The word shall should not be lost in translation. Further,  fails to provide a list as provided should not be interpreted as NOT providing any list at all.

  3. While the Constitution confers a discretionary power on the President to accept or reject any list, no discretionary power, irrespective of how untrammelled it may appear to be ex-facie, is absolute. While the legal principle propounded here is profound, its application is misplaced. The curtailment of the use and abuse of executive discretion is reserved for cases of vested individual rights. The selection of the Chairman of GECOM is not a matter of vested rights and as such, this legal doctrine does not apply. All of the cases cited by Nandlall to support his argument, involve vested legal rights.

So despite Mr. Jagdeo’s huff and puff, when it comes to the appointment of a GECOM Chairman by the President, the former President and AG are dancing on black ice. They are threading on slippery surface and don’t even know it. If they are NOT careful they could soon lose their balance but then again, Mr. Granger has lobbed the ball back in their hands. Could someone say who is calling play for the APNU/AFC government?

Look for my next article!

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Executive Fumbles: Granger’s Handling of the Appointment of a GECOM Chairman

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