Court cannot force president to choose from rejected Gecom nominees

-AG argues in response to PPP challenge

James Patterson

Arguing for the dismissal of the PPP’s challenge to the appointment of retired judge James Patterson as Guyana Elections Commission (Gecom) Chairman, the Attorney General has informed the High Court that President David Granger acted within his constitutional power when he made the unilateral selection and that he cannot be legally compelled to choose from the nominees he rejected.

On Friday, an affidavit in defence, which was sworn to by Solicitor General Kim Kyte on Attorney General (AG) Basil Williams’ behalf, was submitted to the court in reply to the application by PPP executive Zulfikar Mustapha seeking the annulment of Patterson’s appointment.

In it, Kyte defends the legality of the appointment and also contends that Mustapha’s application, filed on October 23, is “absurd, misconceived and void of legal reasoning and merit.” It also argues that the president does not have to give reasons for rejecting any of the nominees for the post and that some of the arguments made against Patterson’s selection are disingenuous, as they would also mean that the nominations of Christopher Ram and Joe Singh by Opposition Leader Bharrat Jagdeo were improper.

Kim Kyte
James Patterson

“…His Excellency the President cannot be directed to choose a person from the lists of eighteen which he specifically rejected,” she says.

“I will contend that for the judicial arm to entertain and grant such an application would encroach on the very principles of separation of powers and the spirit and intendment of the Constitution and an affront to the rule of law. I will further contend that such a direction would be tantamount to a usurpation of the powers of the executive arm of Government by the judiciary who cannot govern,” she adds.

Kyte further argues that the immunities of the president are enshrined in Article 182(1) of the Constitution, which states that the president is not personally answerable to any court while performing his functions of office. Additionally, she says that the president is not required under the proviso of Article 161(2) of the Constitution, under which he appointed Patterson, to consult, consider and account to the leader of the opposition in the exercise of his own independent and deliberate judgment.

Significantly, the affidavit does admit that there was an agreement between Granger and Jagdeo for the establishment of a high-level team representing both sides to resolve the appointment in the event that the third list was rejected. However, Kyte says, “I contend that any such agreement was void ab initio since agreements to contract out of the provisions of the Constitution would be ultra vires, null and void….”

Mustapha’s application was filed after Granger’s controversial appointment of Patterson on the night of October 19, after he rejected a third list of six nominees that had been submitted.

Mustapha’s application noted that Patterson is a reverend, that is, a Christian activist/leader, although the criteria Granger had set out for Jagdeo precluded nominees who were activists in any field. It also noted that he is a member of the Advisory Council on the Prerogative of Mercy, appointed by the President; an advisor to the Attorney-General and Minister of Legal Affairs appointed by the President, the Attorney-General or someone in the President’s Government and was paid eight hundred thousand dollars ($800,000) per month for that post; and appointed by the President to head a Commission of Inquiry into the prison fire at Georgetown; and part of a panel to review applications for the positions of Chief Justice and Chancellor of the Judiciary.

It said too that he was never appointed Chief Justice of Grenada in 1987, or at all, as was stated on his curriculum vitae (CV).

It contended that Patterson is not qualified to be appointed as he cannot be considered to have the requisite integrity on the grounds that he was not the Chief Justice of Grenada as stated on his CV; and that he cannot be or appear to be politically impartial and independent in the discharge of the functions of his office.

The application also stated that the president has no power to make a unilateral appointment once a list of six names is submitted to him, while noting that he also failed to give reasons for naming the 18 nominees unacceptable. “By making a unilateral appointment of a Chairman of Gecom, the President has destroyed a vital and delicate balance which the framers of the Carter Formula, which was codified in Article 161(2) of the Constitution, intended, that is, that Gecom shall consist of three (3) Commissioners representing the Government and three (3) Commissioners representing the Opposition, pre-sided over by a Chairman produced through a consensual process involving the Leader of the Opposition and the President. In all the circumstances, the exercise of the President’s discretion and the decision which has resulted therefrom is unreasonable, arbitrary, capricious, procedurally improper, unconstitutional, influenced by improper motives and made in bad faith,” it said.

 

‘Insufficient grounds’

But according to the affidavit sworn to by Kyte on Williams’ behalf, Patterson is a fit and proper person to be appointed within the parameters of Article 161(2) of the Constitution.

The affidavit, which was released to the media by the AG’s Chambers yesterday, contends that Mustapha’s submission is erroneous in point of law and it is inconsistent with the provisions in the proviso to Article 161 (2) of the Constitution, which in effect provides that where the Opposition Leader fails to provide a list of persons that are not unacceptable to the president, the president can proceed to independently appoint a Gecom chairperson.

“I contend further that the President having deemed the three lists unacceptable is not obliged by the Constitution or any law to select and appoint a person from the list of names submitted to him by the Leader of the Opposition,” she says, while adding that having found the list unacceptable, the proviso to Article 161(2) of the Constitution would apply and the president could proceed to “appoint a Judge or former Judge or a person who would qualify for appointment as a Judge in Guyana or the Commonwealth.

The AG’s affidavit also contends that there is no basis under the Constitution for the president to state reasons for deeming each of the six names on the list or the entire list to be unacceptable because he had already furnished Jagdeo with the criteria to qualify for Gecom chair.

In her ruling on the interpretation of Article 161(2), Chief Justice Roxane George had held that the president is required to give reasons for rejecting nominees so that he could properly move to apply the proviso.

Kyte also says that the submission of the list does not mean that the president is obliged to accept the list or persons named in it and if he is of the view that the list is deficient either in totality or in the names that have been included, he can exercise his discretion to deem the entire list unacceptable.

She notes that by way of a letter, dated October 19, 2017, the president informed Jagdeo that the third list was unacceptable after considering article 161(2) and the judgement of the Chief Justice. She further states that at a meeting on the very day, Granger informed Jagdeo that he would be resorting to the proviso.

The affidavit also contends that Patterson’s theological training is insufficient grounds to deem him a religious activist. “I am advised further and do verily believe that the Honourable Justice Patterson is no longer a serving Pastor and has not served as a Pastor since 2005. I contend further that it is duplicitous for the Applicant to seek to allude to the past pastoral role of Honourable Justice Patterson when the Leader of the Opposition on his third list nominated Mr. Onesi La Fleur, who is currently a serving Pastor,” Kyte says.

She further argues that James being a member of the Advisory Council on the Prerogative of Mercy can in no way hinder his ability to be impartial, objective and independent.

Such an appointment, she argues, demonstrates and enhances his ability to be impartial, objective and independent. “It is therefore deceitful for the Applicant to aver to the advisory capacity of Justice Patterson, even as the leader of the opposition in his first list nominated Mr. Christopher Ram, who also served as adviser to the Honourable Attorney General on the establishment of the Joseph Haynes Law School,” she adds.

It was also made clear that Patterson as an advisor to the AG did not receive a salary of $800,000, but rather the advisors $15,000, except for the chairperson who received $20,000, in keeping with Cabinet’s approval. The citation of the higher figure, Kyte claims, was an “unfounded and mischievous assertion.”

She also states that the services of Patterson were available to all ministers and not just the AG, unlike Ram, whose services were voluntary and specific to the AG. Ram has since resigned from the post.

“I further contend that since the Leader of the Opposition placed Mr. Christopher Ram on his first list, both of them believed that Mr. Ram was not unfit because he was an adviser to the Attorney General and Minister of Legal Affairs and as such it is hypocritical for the Applicant to claim that Honourable Justice James Patterson is disqualified for being such an adviser. I further contend that the Leader of the Opposition similarly felt that Major General Joe Singh was fit and proper to be placed on his third list despite being a paid adviser of the President,” Kyte adds. Singh, following the rejection of the third list, has resigned from all government posts.

Kyte further points out that Singh was included on Jagdeo’s third list though he was appointed more times than Patterson to conduct Commissions of Inquiry.

With regards to the omission of the word “acting” before the Chief Justice qualification on Patterson’s CV, Kyte argues that the terms “Chief Justice” and “Chief Justice acting” are used interchangeably within the region and in Guyana.

“I am informed by the Honourable Justice Patterson and do verily believe that the fact that the word “acting” did not appear after the words “Chief Justice” was  not an intention to deceive and further that does not negative the fact that he held and executed the functions of the office. I am informed by the Honourable Justice Patterson and do verily believe that during his tenure of Chief Justice acting and even after that tenure expired persons who knew him then and even to this day call him “Chief” or “Chief Justice” or “My Lord” as the case may be and that is a common practice in such offices,” she said.

Patterson has said that the omission of “acting” on his CV was a “slip of the pen.”

Meanwhile, Kyte maintains that the president acted constitutionally, out “of necessity, to uphold the rule of law, to prevent the creation of a legal vacuum with grave consequential chaos and in the interest of good governance.”

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