GECOM decision: Darkness at Noon

Darkness at Noon is a 1940 novel by Arthur Koesler about the consolidation of the Soviet dictatorship by Stalin. The title is thought to be an allusion to the unnatural darkness that occurred at midday in the story of Christ’s crucifixion. After months of clear sunshine in Guyana, there were prophetic dark clouds over Georgetown last Thursday when the Appellate Court affirmed President David Granger’s unilateral appointment of the GECOM Chairman, in the absence of the “consensus” with the Opposition Leader, which each of the three Justices conceded, was demanded by the constitutional clauses they were interpreting.
Against the background of a slew of other unilateral actions by the President that fly in the face of other constitutional stipulations were enacted to curb the inordinate powers of the presidency conferred by the Burnhamite 1980 Constitution, it would appear that the Appellate Court is oblivious to the need to contextualise their interpretations historically, to appreciate the “intent of the framers”, which they insisted formed the basis of their decisions.
For instance, one Justice repeated Granger’s obdurate contention on the need for a Judge to be appointed to the GECOM chair by claiming it was “envisaged that a Judge would be impartial” even though Article 162 (2) was explicitly amended to widen the field of nominees. The historical context was that the rigging, which started in 1968, had been facilitated by ex-Justice Sir Donald Jackson, a former Chief Justice, who was the chair of the Guyana Elections Commission up to the 1978 referendum. His successor, Sir Harold Bollers, another former Chief Justice, oversaw the rigged 1980 and 1985 elections. It was not surprising that among the changes to ensure ‘free and fair” elections, the Carter Centre proposed and was accepted by amending Article 162 (2) to broaden the extant “judicial” criterion for appointing the GECOM chair to include, “any other fit and proper person”.
But more pertinently, according to Article 162 (2), the person was to “be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly. Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a Judge”. In 1992, a former diplomat, Rudy Collins was appointed Chairman of GECOM in accordance to Article 162 (2) from the People’s National Congress Opposition list, the “fit and proper” criterion, as was all succeeding Chairs.
The rationale for the Opposition Leader to have a meaningful input in the selection of the GECOM chair in reaching a “consensus” with the President, thus goes to the heart of the need for the electoral process in an intensely divided polity to be legitimised by the competing parties. The endorsement by the Appellate Court of President Granger’s unilateral action to choose his own candidate will only encourage further authoritarian anti-democratic actions.
The same Justice opined that the President could not be directed to choose from a list submitted by the Opposition Leader because that could lead to an “unreasonable fettering of his discretion”. But Article 162 (2) was amended precisely to “fetter” the President’s previous unilateral choice. He could only act unilaterally if no list was submitted. The Judge ignored that intent of the framers by suggesting: “That could possibly lend itself to politicking, abuse by one… Again such an interpretation may also attempt to elevate the Leader of the Opposition to a position over and above the norms associated with his authority.”
By granting the President “unfettered” power in this crucial appointment over the gatekeeper of the process to select governments and the President, the court is going not only against the spirit of the post 1992 constitutional changes to “fetter” the previous Imperial Presidential regime, but also against their letter.
“Consensus” means “a general agreement”, which is absent without the Opposition Leader’s input via his list.