The Guyana Court of Appeal yesterday commenced the hearing of an application for the early disposal of the legal challenge to the decision upholding the unilateral appointment of GECOM Chairman Justice (retd) James Patterson.
While former Attorney General Anil Nandlall was adamant that the court was duty bound to hear and determine the matter urgently given that November 12 has been set for the holding of Local Government Elections (LGE) and that general elections are due by August 2020, his successor Basil Williams SC argued that the challenge to the ruling speaks to the validity of the upcoming LGE elections and should therefore be put on hold.
The two advanced oral arguments before appellate judges, Chancellor (ag) Yonette Cummings-Edwards and Justices Dawn Gregory and Rishi Persaud regarding an application made by Nandlall on behalf of PPP Executive Secretary Zulfikar Mustapha for the appeal of the June 8 decision delivered by Chief Justice (Ag) Roxane George SC to be heard early.
Nandlall noted that an early ruling on the substantive case by the appellate court would give him sufficient time to approach the Caribbean Court of Justice (CCJ) particularly for a final decision ahead of the November date of the LGE if that becomes necessary.
“It is of paramount public importance that the issues which the appeal raises be resolved conclusively before these elections”, Nandlall stressed while noting that it is in this regard that a possible hearing before the CCJ needs to be taken into account. The hearing before the CCJ which is Guyana’s final appeal court must also be completed before elections are held, he said.
Nandlall was quick to point out during his 15-minute address that if this doesn’t happen the litigation would then be futile.
In making his point of urgency, he drew the court’s attention to the CCJ’s expeditious hearing of a challenge by an elector before the recently concluded Barbadian general elections. While noting similarities between these two matters, he pointed out that the court sat on a Sunday so that it could hear and determine the matter before voters headed to the poll. “The court did not sit and allow the entire litigation and legal process to be futile but rather heard the matter…I plead with your honour to emulate that approach”, Nandlall said.
He assured that within a week of getting approval from the court to proceed, he could gather all the records from the lower court and present his case. He reminded the court that there was no oral evidence present, just affidavits and other written documents.
According to Nandlall his arguments hinge on the interpretation of a section of Article 162 of Guyana’s constitution. “Not more than 10 or 15 lines. That is what this case is about….The copious submissions are already there”, he said, adding that given that the positions of both sides are already a matter of record, neither he nor the AG would have much to add. “The evidence is already there”, he stressed.
He informed the court that his contention is that CJ George erred in her interpretation of the law. “There is absolutely no good reason why the appeal should not be fixed early”, he said, adding that the preparation of the record of appeal can be done “within a matter of hours”. He added that the court does not have to count on a typist to type the notes of evidence.
Nandlall said that it is “regrettable” that Williams is opposed to an early hearing of the matter. “One would expect that the state would be the first party to recognize the importance of that issue and the state should have led the way in the interest of the state “, he said before questioning why the state would not want to have the issue resolved definitively prior to the holding of the two elections. He pressed the court to fix a date for the hearing of the appeal before the end of the hearing.
Williams, while disputing Nandlall’s claim of government’s disinterest in the matter, informed the court that the state had filed an affidavit in answer on Tuesday and a copy was served on Nandlall’s office prior to the commencement of the case.
He said that state is opposing the hearing of the application given that a date has already been announced for the LGE. He called the application a challenge to the validity of the November elections and that such an issue can only be dealt with by way of an elections petition which has to be filed prior to the elections.
`Life and death’
The Chancellor (ag) pointed out to Williams that the elections has not been held and that the matter before the court was not a challenge to those elections. The AG however saw things differently. “It (the challenge) is a life and death issue. I submit it is saying that we cannot have valid elections”, he said while asking for the opportunity to release the relevant cases to challenge the hearing of the application before the elections.
During Williams’ address, Justice Cummings-Edwards and the other judges were handed some documents by a court official. She then informed that they were now in possession of the affidavit in answer.
The affidavit which was prepared by State Counsel Utieka John on behalf of Williams contends that the Notice of Motion and Appeal files are without merit and should be dismissed on several grounds. Among the grounds listed are that the president acted in accordance with the constitution, Justice Patterson is a suitable person for the job and that the list does not mean that the president is obligated to accept the list or persons named in it and that if he finds the list deficient, he can exercise his discretion to deem it unacceptable in its entirety.
John contended further that the President acted constitutionally, 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.
“The Respondent will further contend that the Court with scarce resources is burdened with a number of appeals and it is incumbent on the appellant/ applicant to establish that his appeal has a reasonable prospect of success and exceptional circumstances to cause the court to exercise its discretion to abridge the time in his favour”, she argued.
She informed that Williams contends that the applicant has not shown any “exceptional circumstances” to move the court to exercise its discretion for the grant of the application and that the appellant must establish urgency to warrant a grant of his application for his matter to be heard before other appeals.
According to John, the Applicant’s Affidavit is void of any evidence to establish what prejudice he would suffer by his appeal taking the course in the judicial system.
“The respondent will contend that the decision of the Court was sound and another attempt to stymie good governance in Guyana and …That in the circumstances the application is absurd, misconceived, void of merit and ought to be dismissed with substantial costs”, John said.
Williams stressed that aside from a set date, government has already allocated money for the elections. This prompted Justice Cummings-Edwards to again remind Williams that all that was before the court was an application for the expeditious hearing of the case.
The case was then adjourned to tomorrow at 10 am when Williams is expected to make further arguments. He was asked to make the requisite case law and additional information available to the court before the next hearing.
Following the appointment and swearing-in of the then 84-year-old Patterson on October 19th last, Mustapha filed an application in the High Court, 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.
Among the issues which the court had to determine was whether the appointment of Justice Patterson was unconstitutional as the applicant contended that the President 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.
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.”