david hinds guyana chronicle November 5, 2017

  

THE current Carter-Price formula was put in place as a stop-gap measure prior to the 1992 election. It was part of the negotiated settlement to ensure the resumption of free and fair elections. The central tenet was that the two major political parties were afforded equal representation on the commission and that the chair enjoyed the confidence of both sides.
It also broadened the selection of the chair to include an input from the opposition leader. Up till then, the selection was the sole power of the president. Critically, while the formula broadened the process, the ultimate power of the president to make the final choice was left intact.

At the same time, the very partisan composition and equal representation of the parties on the commission meant that gridlock was built into the process. This then enhanced the importance of the chair, who on pivotal matters is forced to take one side or the other. So, in effect the process unwittingly transformed the chair into an appendage of one side or the other, depending on how he casts his vote.
It should be noted that the Carter formula did not set out to fix the problem of partisan interference in the management of elections—it merely offered a framework for more inclusion in the process. In that sense, it assumed that both sides were committed to consensus—that was the only way the system could work. For the letter of the arrangement to have much teeth, it had to be accompanied by a spirit of consensus on both sides.

But in our politically charged environment, achieving and maintaining consensus are always a considerable challenge. In that regard, the Carter formula was a risky venture: its success was premised on a political value that, more often than not, is in short supply. Curiously, the formula eventually found its way into the constitution with the blessings of both the PPP and PNC.

But, as is normal with these legal-constitutional matters, some things are not clearly expressed—they are left to interpretation. While seemingly retaining the ultimate power of the president to choose the chair, the constitution does not clearly say what happens if the opposition does not provide a list that the President finds acceptable. In other words, at what point can the president act unilaterally.

I think he can only do so if the system breaks down because the lists provided by the opposition leader violates the spirit of the constitution and that and the electoral system is threatened by the absence of a GECOM chair. As Gary Best, in his brilliant intervention, (Kaieteur News October 29, 2017) points out, there is no clear definition of the phrase “if the Leader of the Opposition fails to submit a list as provided for… “

He, however, submits that based on the substantive clause which lists two categories of persons— judges of various jurisdictions and persons who are fit and proper– the phrase “a list as provided for” can only mean a list of six persons not unacceptable to the President and not the absence of a list being presented to the President. The chief justice seems to agree with Best’s interpretation.

David-Hinds

The PPP, some political commentators and legal scholars are arguing differently: they are saying that once a list is provided by the opposition leader, the president is bound to choose someone from that list. For them, the constitution does not grant the president unilateral powers. But ultimate power to act unilaterally to break gridlock has to lie somewhere. If one accepts that logic, then the PPP and its allies are arguing for giving such power to the opposition leader, whose lists can limit the president’s choice with the latter having no veto power.

The point I am driving at is that the Carter formula does not say in expressed language where ultimate power to choose lies—it leaves it open to interpretation. And in a politically volatile society like Guyana, that is a political liability. My sense is that they enshrined the Carter formula in the constitution, not because it was perfect, but because it had worked for two elections and finding an alternative to it would have proved impossible at that time.
Further, I feel the parties went along with the choices since 1990, not because they were acceptable to both sides, but because they accepted the logic of the formula—that the party which holds the presidency would always have the advantage when it comes to the final choice. This, for me, is what his key here—an acceptance of the spirit of the system.

So fast forward to the present. The PPP lost power in 2015 and it said publicly that the GECOM chair was in collusion with the PNC commissioners to steal the election from them. This conclusion was drawn because the chair refused to bow to the PPP’s demands. So, they mounted weekly pickets against him. That was a clear signal that the PPP wanted a chair who was going to be partial to them. The president responded in a similar vein by drawing a line in the sand about who he thinks fitted the bill of “fit and proper.”
The two positions amounted to the removal of any commitment to consensus. In effect, the Carter-Price formula had broken down—the process was jettisoned before it started. The spirit that made the formula work was thrown out the window. So, the present outcome was inevitable—as the WPA contends, there could not be a nominee acceptable to both sides.

I say all of the above to show why the formula was risky from the beginning and why the changed political environment has rendered it unsuitable. The PPP accepted the formula when it had the ultimate power to choose. Now that it has lost power, it wants to give that ultimate power to the opposition leader. The Carter formula, therefore, has become the victim of the changed political environment which arises out of the change in government.
For me, it is time to move on from that formula for two main reasons. First, the partisan composition of GECOM is a liability—it is a recipe for partisan manipulation of the process and ultimately gridlock, unless, of course, if the chair steps in. And whenever he did, his vote was deemed to be partisan. Although both sides were equally represented, they had confidence in the process only when the chair acted or voted in a manner consistent with their respective interests.

Second, the process for selecting the chair is too limited. To limit the selection of a contentious office to the leaders of the two contending sides, as is currently the case, is to make the selection part of the larger zero-sum politics. The selection process becomes part of the problem rather than a solution of the problem.

What is the answer? If consensus cannot be achieved via the will of the political actors, it has to be engineered, however difficult that undertaking is going to be. I would, therefore, argue for a scrapping of a commission comprising direct representation of political parties and replace it with one made of citizens who are not directly affiliated to the political parties. Next, I would broaden the selection process by removing the initiation of the list of nominees from the opposition leader.

Towards this end, I generally favour the recommendations of the 2005 Carl Dundas Report, which recommended a four-step process starting with a committee of eminent persons receiving nominations from political parties which then recommends names to a Parliamentary Select Committee which in turn makes representations to the full Assembly, which then, through a two-thirds vote, recommends the final nominee to the President.
According to the Dundas Report, the Committee of Eminent persons should comprise the Chancellor of the Judiciary, the Chairperson of the Human Rights Commission, the Chairperson of the Ethnic Relations Commission and the Head of the Women and Gender Equality Commission. I am not hard and fast on those organisations—we may want to consider some others such as the Bar Association, Transparency International, the University of Guyana, the Religious Community etc., even if some are non-voting members. But I would definitely include a CARICOM nominee as a non-voting member
What I like about the Dundas model, which is used in countries such as South Africa, Namibia and the United Kingdom, is that it broadens the process and it forces consensus on the partisan actors. It removes the parties from the driving seat. By the time they come to vote on it in the National Assembly, the process would be far advanced. And crucially, I would remove the president’s unchecked veto power by clearly stating under what conditions he or she could reject the nominee thrown up by the process.

There will be cynics who would ask what happens if the parties don’t cooperate with the new system. My answer is simple–they would first have to agree to the change, so there would be some level of investment in its success. Second, it is a much more democratic system than the one we currently have. Third, you don’t know if something works until you work it. Fourth, if and when that system outlives it usefulness, you find something better.

More of Dr. Hinds ‘writings and commentaries can be found on his YouTube Channel Hinds’ Sight: Dr. David Hinds’ Guyana-Caribbean Politics and on his website www.guyanacaribbeanpolitics.com. Send comments to dhinds6106@aol.com