THE TENURE OF ELECTION COMMISSIONERS
Tradition in politics and governance in most developed political systems dictates that when a person is appointed to a position by political preference, that person is expected to resign when the appointor or recommender leaves office. This, of course, applies only to particular categories of offices such as ministers of government, members of boards and commissions and others. Some officials, such as judges, auditors general and others in certain circumstances, are normally expected not to resign when a new government takes office because security of tenure preserves their independence.
In relation to politics, the principle operates to give confidence to the government or recommender by making appointments of persons in whom it has confidence. In relation to governance, the principle operates to preserve the independence of the appointee. In Guyana, election commissioners are appointed on deliberate judgment or on recommendation. When the person responsible for initiating the appointment changes, the affected commissioners, as a moral imperative and by standard political practice, ought to resign or offer their resignations. This principle is so deeply entrenched that it is recognized as a convention. This convention is so much part of democratic political systems that it has become the expected practice.
Article 161(3) of the Constitution provides for the appointment by the President of the Chair and members of the Guyana’s Elections Commissioners. As is well known, apart from the Chair, there are six members, three appointed by the President in his own deliberate judgment and three appointed by the President on the advice of the Leader of the Opposition after the latter’s consultation with other non-governmental political parties represented in the National Assembly. Some have argued, including Neville Bissember (Jr), that the three members originally appointed on the recommendation of a past Leader of the Opposition are not entitled to hold office since the election of a new Leader of the Opposition. There can hardly be any dispute over this contention, but the question is, how to implement the wishes of the new Leader of the Opposition to have new members of the Commission based on his recommendations, there being no provision in the Constitution for the Commissioners to leave office, and their refusal to do so.
The first option is to seek judicial intervention. A court could potentially declare that under article 161(3) of the Constitution, the three Commissioners are required to have the confidence of the Leader of the Opposition. It may even go furtherand declare that the three members of the Commission do not have such confidence, having regard to his letter to the President nominating three other persons. A Court may even be prepared to say that the three Commissioners holding on to their seats is unlawful. However, in the absence of a specific provision in the Constitution that provides for the resignation or removal of the three members or circumstances by which their offices come to an end, a court might stop short of declaring them vacant.
The second option is for the Government to table legislation in the National Assembly that would amend the Constitution to require Commissioners to resign in specified circumstances. The Government and WIN together have more than a two-third majority in the National Assembly so that such a Bill will easily pass. However, the Government has clearly demonstrated that it is unwilling to engage with WIN in any way, shape or form. It is therefore unlikely that the Government will embark on such an initiative of its own motion or if asked by WIN or by the public.
The third option is for WIN to table a Private Members’ Bill in the National Assembly pursuant to clause 51 of the Standing Orders. It is not known whether the Government will support such a Bill. The circumstances that prevail currently suggest that the Government’s hostility to WIN is so deep-seated that it might prefer to have the three Commissioners retain their positions rather than amend the Constitution to have the three Commissioners unseated. They are not morally entitled to their seats. The omission in the Constitution of a provision for the termination of their offices is clearly an error. Prior to the reforms in 1992 and the ommision, the life of the Elections Commission came to an end three months after the elections. This prevailed from 1966 to 1992.
In 1966 the drafters of the Constitution understood that the composition of the Commission could change depending on the results of the elections, hence the provision terminating the offices of the Commissioners three months after the elections. The same situation occurred from 1992, as is seen today, where the new Leader of the Opposition appears to have no confidence in the members nominated as far back as the time of Desmond Hoyte. When Robert Corbin was re-appointed Leader of the Opposition after the 2006 elections, he sought to have the same three Commissioners resign. He was met with the same response that the three Commissioners are now giving, namely, refusals on the ground there is no provision in the Constitution that requires them to resign. This contention makes them the only constitutional office holders in Guyana entitled to hold office for life, unless removed for cause on the recommendation of a tribunal.
