Acting Chief Justice Roxane George SC yesterday validated President David Granger’s unilateral appointment of retired judge James Patterson as Guyana Elections Com-mission (GECOM) Chair-man, ruling that he had the discretion to so do.
In a ruling that was delivered in over an hour yesterday morning on the application filed by PPP executive Zulfikar Mustapha, who was seeking the annulment of Patterson’s appointment, the judge dismissed the challenge as wholly misconceived and declared “I hold that there is nothing before this Court to permit a finding that the President acted unlawfully or irrationally in resorting to the proviso to Article 161(2), or to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM.”
Expressing disappointment with the ruling, Mustapha’s Anil Nandlall has signaled his intention to appeal “all the way to the Caribbean Court of Justice if we have to.”
Following the appointment and swearing-in of the 84-year-old Patterson on October 19th last, Mustapha filed an application, contending among other things that the president had no power to make a unilateral appointment once a list of six names had been submitted to him.
He made this argument while noting that the head of state had failed to give reasons for naming Opposition Leader Bharrat Jagdeo’s 18 nominees as unacceptable.
Article 161(2) provides for the appointment of a Chairman based on a consensual process in which a list of six persons, “not unacceptable to the president,” is submitted by the opposition leader.
The proviso allows for the appointment to be made unilaterally, where the opposition leader fails to submit a list “as provided for.” Jagdeo submitted three lists, which were all rejected by Granger.
Justice George found that the president was “entitled to resort to the proviso once he found the list that was submitted to be unacceptable….”
The judge once again also found that the president “ought to have and should have given reasons” for his rejection of the final list of six names submitted by Jagdeo in order to properly resort to the proviso. However, it seems that from the judge’s ruling, the failure by the President to provide reasons is not grounds for preventing his resort to the proviso.
The unilateral appointment of the judge, which both Granger and Attorney General Basil Williams have defended, had led to condemnation from civil society after what became a protracted nomination process.
Among the issues which the court had to determine,was whether the appointment of Justice Patterson was unconstitutional as the applicant contended that he had no power to make a unilateral appointment once a list of six names was submitted to him.
Referencing the case of Marcel Gaskin v the Attorney General et al 2017-HC-DEM-CIV-FDA-160, in which she had previously ruled, the judge noted that while it would be expected that the opposition leader would name persons who are prima facie fit and proper, it is the President who will ultimately make the final determination of who is a fit and proper person for the post since the list of persons must not be unacceptable to him.
The judge further said that this meant the President has the final say in determining who would be appointed as Chairman of GECOM, albeit either from the list provided by the opposition leader or pursuant to the proviso, a person who falls solely within the judicial category as defined in Gaskin.
To the applicant’s submission that ‘not unacceptable’ fell somewhere between ‘acceptable’ and ‘unacceptable’, and that a person can be ‘unacceptable’ but still not be ‘not unacceptable,’ the respondent had argued that the use of the double negative is an example of litotes which, it is argued, is an intentional literary device meant to emphasize the wide ambit of the President’s discretion.
Relying again on the case of Gaskin, however, the Chief Justice quoted, “The submission of the list does not mean that the President is obliged to accept the list or the persons named in it. If the President feels 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 had found then that, “If by not choosing any of the persons listed the President thereby finds the list unacceptable, the proviso to article 161(2) would apply and the President should then go on to appoint a judge or former judge or person who would qualify for appointment as a judge in Guyana or the Commonwealth to the post of Chairman of GECOM.”
It is against this backdrop that the court ruled that the President has the power, under Article 161(2) of the Constitution, to reject the list submitted by the opposition leader if it is unacceptable to him and to resort to the proviso of that article and choose a person as Chairman of GECOM who is, was, or is qualified to be appointed as a judge in Guyana or the Commonwealth.
Justice George pointed out, however, from the case that this did not mean that the President was bound to appoint someone from a deficient list.
In the circumstances, the Chief Justice ruled that the President was entitled to resort to the proviso once he found the list that was submitted to be unacceptable, but whether it was unacceptable would have depended on an objective analysis of the persons thereon according to the criteria set out in the President’s letter that a candidate for appointment to the post of Chairman of GECOM should possess.
The court then turned its attention to whether the president is required to give reasons for deeming the list submitted by the opposition leader as unacceptable. It was the state’s contention among other things, that there was no basis under the Constitution for the President to provide reasons for finding the list and/or persons included therein unacceptable, since there was no duty to state reasons at common law, while adding that the cases demonstrate that the courts will interfere only where bad reasons have been given.
Again referencing case law, the Chief Justice noted that while the House of Lords did not hold that there is a duty to give reasons, it did emphasise that the courts may interfere where reasons have not been given and it is found by the court that the decision made was not rational.
This was the reasoning in the case of R v Secretary of State for Trade & Industry ex parte Lonrho pic  1 WLR 525.
The court noted further that the principle that a decision maker should give reasons for a decision was upheld in the case of Gaskin.
In his application, Mustapha had argued that President Granger failed to give reasons for deeming the list submitted unacceptable.
The respondents on the other hand, had submitted that the President did, in his final letter of October 19th, 2017, give reasons—disclosing factors such as the “public interest” and to avoid “further delay” upon which he reasonably and rationally exercised his discretion for resorting to the proviso.
It was decided in Gaskin that the President must give reasons for exercising his discretion to deem the list unacceptable “so that he could properly move to apply the proviso…which allows for the appointment of persons from the judicial category only.” Thus, it is the rejection of the list for which reasons are required.
The Chief Justice then reasoned that the question to be answered, therefore, was whether the letter of October 19th provided reasons for the rejection of the third list submitted by Jagdeo.
This question was answered in reference to article 161(2) upon which the court had already relied.
The court noted that the third list having been submitted by Jagdeo, the reasons must go towards explaining why this list was found to be unacceptable to the President.
The judge went on to further reason that the reasons of ‘the public interest’ and ‘to avoid delay’ serve to explain why the President may have sought to resort to the proviso and the appointment of Justice Patterson as Chairman of GECOM having rejected the third list submitted by the opposition leader as being unacceptable.
Justice George then concluded that these reasons cannot be referable to explaining the unacceptability of the list and, therefore, held that in effect no reasons for the rejection of the third list had been given.
The judge noted that the giving of reasons was not held to be required only in relation to the submission of more than one list which was done, but also and importantly in relation to resorting to the proviso.
The court further observed therefore, that the interpretation that the only or main basis for reasons is in relation to the potential submission of another list cannot be supported. Gaskin, the judge noted clearly establishes that reasons are required so that the President could properly move to apply the proviso.
She noted further, that the President is required to indicate either specifically or generally the reasons why persons on the list or the list was found by him to be unacceptable in order to justify him rejecting the entire list and resorting to the proviso.
To this prerequisite, however, the Chief Justice said, “there is nothing to suggest that this was done, nor was any submission made by the respondent to so indicate, so it must be concluded that the President has, thus far, failed to give reasons for his decision to reject the list as being unacceptable.”
As regards, however, whether Justice Patterson’s appointment was unconstitutional and therefore null and void for failure to give reasons, the court observed that in the same way that the Constitution does not expressly provide for the giving of reasons, there is no express guideline as to the effect of the absence of such reasons.
Referencing certain criteria which the President had relied on for determining a “fit and proper” candidate, the court examined Justice Patterson’s suitability against the curricula vitae of the other nominees.
The applicant had challenged Justice Patterson’s appointment on three grounds—first, that he could not be considered as having the requisite integrity because he was not Chief Justice of Grenada, as he had stated on his curriculum vitae.
Secondly, Mustapha argued that he could not be or appear to be politically impartial and independent in the discharge of the functions of his office, owing to his appointment by the President to certain positions or bodies, his participation as a pallbearer at the funeral of former President Hugh Desmond Hoyte, and the appearance of his Facebook profile as a member of a group named ‘Rally around the People’s National Congress (PNC).’
Additionally, the applicant took issue with the fact that Patterson was a reverend and Christian activist and therefore offended one of the very qualities which had been stipulated by the President.
The applicant failed on every ground advanced.
Relying on the case of Gaskin, the applicant had sought to argue that although a person may be a fit and proper person to be appointed s/he may nevertheless be unacceptable because it may be known that the person is not in the best of health or is otherwise unable to withstand the rigours of being Chairman of GECOM.
The Chief Justice pointed out, however, that no evidence had been presented by the applicant to substantiate that the octogenarian was not in the best of health or unable to withstand the rigours of job he had been appointed to perform.
Many had criticised the president’s appointment of Patterson, whom it is believed would not be able to execute his functions given his advancement in age.
To the applicant’s argument that a lack of evidence supporting the appointment of Justice Patterson as Chief Justice of Grenada impugned his credibility and integrity, Justice George referenced the several exhibits tendered by the respondents which referred to him as such.
This evidence, she said, did indicate that Justice Patterson acted in such a capacity, “which is not dissimilar from the persons who acted as Chief Justice and Chancellor in Guyana for more than a decade – a notorious fact.”
To Mustapha’s contention that Justice Patterson was appointed by the President to serve as an advisor in different ways and also on a Commission of Inquiry, the court noted that Jagdeo had also submitted nominees who served in similar capacities, such as Major General (Ref d) Joseph Singh, who at the time of his nomination was an advisor to President Granger.
To the applicant’s argument that Justice Patterson is affiliated with the PNC because he was a pall bearer “at a political segment” of President Hoyte’s funeral, apart from a lack of clarity in what is meant by “a political segment” of the funeral, the Chief Justice said this objection is “disingenuous and may even be considered ludicrous” suggesting as it does that paying respects to a departed colleague, friend or relative would mean that one subscribes to the political views and affiliations of the deceased.
In this regard, the court referenced a document exhibited by the applicant, that now Minister of Public Security Khemraj Ramjattan, then a member of the PPP at-the time of Hoyte’s funeral “(a notorious fact),” was also a pall bearer.
The document had noted that Jagdeo, now opposition leader, and then President of Guyana, made remarks. “They paid their respects,” she said.
The court reasoned that it was therefore difficult to see how the applicant could seek to use this example in such light, “but suffice it to say that this cannot in any way lead to a conclusion that Justice Patterson was or is affiliated with the PNC of which the President is leader or that it impugns his integrity.”
This submission, the court noted, cannot therefore be sustained.
Finally, the court noted that the alleged membership of the Facebook group could not in any way be accepted as evidence of an alliance with the PNC or any political party.
To this end, the judge said it is common knowledge, in this technological age, that one cannot necessarily control one’s appearance on social media sites.
The judge observed that the exhibit disclosed that Justice Patterson was added by a Sheldon Britton on January 22nd, 2016, while noting that there was no explanation in the applicant’s affidavit about this.
The Chief Justice said here is no evidence that Justice Patterson ever acknowledged such addition or participated in any way in the activities on this Facebook page, whether or not it is an official page of the PNC. “Therefore, I do not accept the applicant’s contentions on this ground as a valid basis for challenging Justice Patterson’s appointment,” Justice George said.
Meanwhile, to the applicant’s complaint that Patterson served as a pastor and as a chairman of a local church body, the court noted that another nominee had also been a pastor and has held a senior position within his church.
The judge said there was no evidence that Justice Patterson is currently a religious leader or activist.
In all the circumstances, the Chief Justice said, “even in the absence of reasons,” it is difficult for this court to conclude that the President’s decision to reject the list as being unacceptable was either illegal or irrational bearing in mind the decision in Gaskin that the President could, in the exercise of his discretion, reject the entire list as unacceptable if even one person was found to be unacceptable.”
It is against this backdrop the judge surmised that the absence of reasons, whether specific or general, from the President, as to why the list was rejected would not vitiate his decision to reject the list and resort to the proviso.
Concomitantly, she said, in the circumstances it would be a stretch to deem the appointment of Justice Patterson pursuant to article 161(2) as being unconstitutional because of the absence of reasons for the rejection of the third list.
The Chief Justice held that there was nothing before her to permit a finding that the President acted unlawfully or irrationally in resorting to the proviso to article 161(2), or to rebut the presumption that Justice Patterson is qualified ‘to be appointed to the post of Chairman of GECOM.
As a result the declarations which were being sought by Mustapha to have Patterson’s appointment annulled for his non-qualification as Gecom Chairman were refused.
For an order directing the president to choose a person from the 18 names submitted to him by Jagdeo, the judge noted among other things, that even if the court had found in favour of the applicant, it would not have been permissible for the court to usurp the function of the President by directing him to choose a nominee from the third or any list.
Dismissing Mustapha’s application as being “wholly misconceived,” the court awarded the state costs in the sum of $250,000 which has to be borne by him, (Mustapha).
In her ruling, the Chief Justice had declared that the court did have jurisdiction to hear the matter and the applicant did have the capacity to bring the action. The respondents had sought to argue otherwise.
The state was represented by Barbadian Queen’s Counsel (QCs) Ralph Thorne and Hal Gollop, in association with Williams, Solicitor General Kim Kyte-Thomas and attorney Oneka Archer-Caulder.
Meanwhile, the opposition’s legal team comprised Nandlall, in association with attorneys Manoj Narayan, Priya Manickchand, and Rajendra Jaigobin.
Reacting to the ruling, the AG said that it is timely, and confirms their argument that “the president, under the constitution, is the only authority to appoint the Chairman of GECOM.”
Williams said that while there is methodology for him to arrive at his choice it is only the president who has the discretion, while noting satisfaction that the Chairman can now “comfortably,” move forward with his duties in the interest of the nation to organize “fit and proper” elections.
For his part meanwhile, Nandlall said that he was disappointed with the decision, while noting that he will appeal, all the way to the regional court of last resort—the CCJ, if he has to.
He argued that the ruling has rendered the constitutional formula for the requirement of consensus on the appointment of the GECOM Chairman by both the President and leader of the opposition “illusory.”
According to him, the formula had been defeated by the judgment in that the Chief Justice has ruled that a president can reject a list submitted to him by the opposition leader—give reasons, and then go on to appoint someone of his own choice.
He said that what this creates, is the avenue for any president to now smoothly and lightly reject any list submitted by an opposition and still appoint someone of his own choosing.
Nandlall, argues that the ruling renders the role of the leader of the opposition redundant and impotent while contending that this was never the intention of the framers of the constitution.
He said what was intended, was for a Chairman to be produced by a process involving the input from both the president and opposition leader. He said it never contemplated, except in the rarest and most exceptional circumstances a unilateral appointment.
According to him, “everything else that the Chief Justice said there is irrelevant,” while adding that the important constitutional balance has been violated by the judgment.