On Sunday 11th June 2017, I read an article in Stabroek News (‘Process to appoint substantive Chancellor, CJ should not be rushed – lawyer’), which convinced me that a substantial number of us suffer from a form of ‘cognitive delusion’: a preoccupation with beliefs about our political system despite the logical absurdity of some of these beliefs and a lack of supporting evidence (Encyclopædia Britannica). I was already nearing this conclusion after reading Mr. James McAllister’s ‘There cannot be a process where Afro-Guyanese are deliberately excluded from serious consideration on the Gecom list’ (SN: 08/06/2017).
The Stabroek News article, began: ‘Despite an earlier arrangement, President David Granger is yet to discuss with Opposition Leader Bharrat Jagdeo those nominated for the substantive posts of Chancellor and Chief Justice but legal sources say the process should not be rushed given that it is now transparent following the appointment of a special panel to review applications.’ The appointed panel consists of Justices Claudette Singh and James Patterson and Dr. Harold Lutchman. Wikipedia states what we know, namely that: ‘Transparency is operating in such a way that it is easy for others to see what actions are performed’. But are the panel members not very much a part of the APNU+AFC legal hierarchy, so how does the establishment of this panel in itself make the process of appointing the country’s top judicial officials more transparent?
This column will focus on the appointment of a chairperson for the Guyana Elections Commission (Gecom) and more specifically on Mr. James McAllister’s take on the issue, but first let we consider a more general question which also appears delusionary. Hardly a day passes without someone preaching about the necessity for us to quickly establish an independent non-political elections commission despite the burden of the evidence suggesting that while such a commission might be the ideal and quite workable in normal political conditions, it could not be in Guyana where there is a deeply felt belief, which political competition has from time to time helped to reinforce, that mere ethnicity determines one’s political orientation.
I can wager that these calls for an independent commission will continue, with perhaps even more verve, again despite the evidence suggesting that if it is so difficult to find one non-partisan person to be the chairperson, it will be almost impossible to find six such persons. And if, perchance, six such persons do materialise, since the parties will bear little responsibility for their existence, the invectives and resultant psychological trauma such commissioners are like to face will be debilitating.
One of the first obstacles in the formation of a procurement commission was the PNC insistence – which in the interest of getting the commission established I argued against at the time – that membership should be based upon stated objective criteria. This helped to postpone the initial effort, allow time for all manner of other considerations to enter the discourse, and over a decade later, a commission resulting from political horse-trading was all that we could muster but of course, amid much talk of great transparency and objectivity! When the time came for APNU to be magnanimous and give the AFC one of the opposition seats on the elections commission, that was not to be, and the former proceeded to select three Africans. Our political system has limits which it is pointless to attempt to transcend without major restructuring.
Now to Mr. McAllister: put succinctly and perhaps more starkly, he rightly claimed that the matter of electing the chairperson is not simply a legal one but is also underpinned by a political reality, founded in the Carter Formula, that the chairperson must enjoy the confidence of the President and the Leader of the Opposition. From 1995 to the present, the PNC has had three occasions on which to submit names for chair of the elections commission, and on each occasion the late President Desmond Hoyte submitted five largely non-partisan Africans and one Indian, and on each occasion the PPP chose the Indian. According to Mr. McAllister, this suggests that the PPP prefers an Indo-Guyanese as the chairperson of Gecom. But both the lists presented by Mr. Jagdeo thus far have contained all manner of politically questionable people in an attempt to force the hand of the president to choose an Indian. ‘However, for us to proceed with a process where Mr. Jagdeo deliberately orchestrates the exclusion of Afro-Guyanese from serious consideration would mean we are falling for, and perpetuating, Mr. Jagdeo`s scheme of disrespect for the Afro-Guyanese community.’
I have no dispute with the position that Mr. Jagdeo attempted to manipulate the list for I wrote long ago that ‘all the names on the opposition list, except possibly that of Mr. Lawrence Lachmansingh, could be and should be rejected on political grounds. In that sense, in submitting that list, the leader of the opposition, Mr. Bharrat Jagdeo, was trying to decide who should be the chairperson rather than presenting the president with a wider list of neutral persons and thus a real opportunity to choose’ (‘Smart-man’ and disruptive politics:’ SN: 18/01/2017).
However, if Mr. McAllister’s data is correct I wonder if Hoyte and Jagan for that matter were not being supremely clever. The former only had one occasion to choose the chairperson of the elections commission based upon the Carter formula, and of the two Africans on the list presented to him, he chose former ambassador Mr. Rudy Collins, who would hardly have reached ambassadorial level, particularly at a sensitive posting like Venezuela, if he did not have the total confidence of Desmond Hoyte and the PNC. It must also be obvious to Mr. McAllister that Mr. Hoyte also tried to and succeeded in manipulating the process by on each occasion giving the PPP five credible Africans and one Indian, knowing from his own experience that the PPP was more likely to choose the Indian.
The point was to find an Indian whom he believed would be acceptable to the PPP but would have sufficient objectivity. In this context, whatever choice Jagan made, Hoyte would have been satisfied, and that is all one should ultimately expect in any high stakes negotiating process. I wonder if by so prioritising an Indian, Mr. Hoyte, by ‘deliberately orchestrat[ing] the exclusion of Afro-Guyanese from serious consideration’ was, as Mr. McAlister would have us believe, ‘perpetuating … disrespect for the Afro-Guyanese community!’
The Carter formula contains a ‘silent’ negotiation process, and as in all negotiations, attempts to manipulate the process should be expected and it is for the other side to preempt and/or stymie such efforts.
While race/ethnicity is important, for those presenting the list the Carter Formula put a premium on a propensity towards being objective and unbiased. So, from where I stand, by deciding not to ‘go the whole hog’ but to seek to control the context by giving the PPP a single real choice, Hoyte’s approach was well thought out, and that is perhaps why he held to it on all three occasions.
Next week I will argue that Mr. Bharrat Jagdeo is in a harder place, but that he would have made it much more difficult for the PNC to reject his list had he adopted something of Desmond Hoyte’s approach and given Mr. Granger the choice of one or two acceptable Africans.