[46]
The principle of participation is an important guiding principle in the
Constitution of Guyana. The Fourth Recital to the Preamble to the Constitution
recognises the desire and intention of the people of Guyana to forge a system of
governance which promotes “broad-based participation in national decisionmaking” in order to develop “a harmonious community based on democratic
values, social justice, fundamental human rights, and the rule of law”. In
addition, Article 13 sets out the principal objective of the political system of
Guyana – ‘to establish an inclusionary democracy by providing increasing
opportunities for the participation of citizens’.
[47]
The historical evolution of Article 161(2) demonstrates that it was amended to
fashion a consensual process that allowed both the Government and the
Opposition parties to participate in the selection of the Chairman of the
Elections Commission. As mentioned earlier, in keeping with the provisions of
Article 161(2) the Leader of the Opposition is obliged to have “meaningful
consultation with the non-government political parties represented in the
National Assembly”.
The inclusive approach captured by Article 161(2)
therefore envisions the appointment by the President of a Chairman who
commands the trust and confidence of the winners and the losers of an election.
There is a clear paradigm shift from absolute and unilateral power vested in the
President to a consensual process enshrined in the Constitution and
recommended by both the Carter-Price Report and the Constitutional Reform
Commission. Rishi Persaud JA in the Guyana Court of Appeal articulated it
thus: “There was a clear shift from unilateralism to one of consensualism”.24
This is the spirit and intendment of Article 161(2) and it is the yardstick against
which the course of conduct leading up to Justice Patterson’s appointment to
the chairmanship of the Elections Commission should be measured.
Duty to give reasons
[48]
It was submitted on behalf of the Attorney General that the President was under
no duty to give reasons for rejecting the lists submitted to him by the Leader of
the Opposition. On the other hand, it was submitted for the appellant, that
24
Page 16 of the Court of Appeal Transcript, Ref No. 100 of 2018.