PPP Executive Secretary Zulfikar Mustapha yesterday filed an appeal challenging the recent decision upholding the appointment of Guyana Elections Commission (GECOM) Chairman Justice (retd) James Patterson, arguing that Chief Justice (Ag) Roxane George SC misdirected herself in law on several points, including whether the president has the power to request multiple lists of nominees.
Attorney Anil Nandlall filed the Notice of Appeal, which lists Mustapha as the appellant and the Attorney General as the respondent.
The notice advances several grounds to support the appeal. It is argued that the Judge erred and misdirected herself in law in construing Article 161 (2) of the Constitution; by failing to give effect to the intentions of the framers of the Article and failed to apply or failed to properly apply the purposive canon of interpretation in construing Article 161 (2) of the Constitution.
It also argues that the Judge erred and misdirected herself in law when she “misconstrued and misinterpreted” the role of the Leader of the Opposition in Article 161 (2) of the Constitution; by omitting to review or properly review the exercise of the power and discretion which Article 161 (2) reside with the President in rejecting three (3) sets of names submitted to him by the Leader of the Opposition pursuant to the said Article in order to determine whether the President exercised that power and discretion lawfully and reasonably and not irrationally, capriciously, whimsically and influenced by irrelevant and extraneous considerations and not guided by relevant considerations; and by ruling that the President has the power to reject a list of six (6) names submitted to him by the Leader of the Opposition pursuant to Article 161 (2) of the Constitution.
According to the court documents, the Judge also made an error and misdirected herself when she failed to pronounce on whether the President has the power to request more than one list of six names from the Leader of the Opposition and to take into account the first and the second list of names submitted by the Leader of the Opposition upon the request of the President.
Further, it is being argued that the Judge erred and misdirected herself in law by finding that the President is empowered to reject the list as unacceptable although one or more persons on that list is or are acceptable to the President; by ruling that the President lawfully and properly invoked the proviso to Article 161 (2) of the Constitution; by failing to correctly and properly construe and interpret the circumstances when the proviso to Article 161 (2) of the Constitution can be activated; and by failing to impugn the appointment of Mr. Justice James Patterson as Chairman of GECOM after she ruled that reasons are required to be provided by the president for the rejection of the list submitted by the Leader of the Opposition and after having ruled that the President provided no such reasons.
It was argued that the decision of the Judge is “wrong, misconceived and erroneous in law” as it has destroyed a delicate but fundamental balance in the composition of GECOM, which the framers of the Constitution intended to repose in a Chairman appointed by a formula captured in Article 161 (2) of the Constitution to ensure that such a Chairman enjoys the confidence and acceptance of both the Leader of the Opposition and the President.
Following the appointment and swearing-in of the then 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 rejecting all of 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 President David Granger.
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.
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.
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 by the President in a letter to Jagdeo.
The judge also found 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.”