Taking into consideration the upcoming Local Government Elections (LGE), the Guyana Court of Appeal yesterday set October 4th for the commencement of the hearing of the legal challenge to the Chief Justice Roxane George’s decision to uphold the unilateral appointment of Guyana Elections Commission (GECOM) Chairman Justice (ret’d) James Patterson.
The LGE are due to be held on November 12th.
Following the court’s decision, attorney Anil Nandlall, who filed the application for an early hearing of the challenge on behalf of PPP Executive Secretary Zulfikar Mustapha, said that the date given is acceptable in the circumstances. He noted that the court had clearly recognised the importance of the quick disposal of the matter. Moreover, he said while he would have wanted the case completed before the LGE, his main aim is to have it disposed of before the 2020 general elections.
Chancellor (ag) Yonette Cummings-Edwards, who heard the matter along with Justices Dawn Gregory and Rishi Persaud, granted Nandlall’s application yesterday afternoon, after hearing submissions from both sides during the morning hours and on Wednesday. The court also relied on the written submissions that were made.
Justice Cumming-Edwards noted that given the importance of the issue, the court had to “fast track” the hearing of the appeal. Nandlall had argued at length that the urgent hearing of the matter is of public importance.
“We are of the view that given the pending date of Local Government Elections and given that there are matters which will touch and concern the questions posed on the decision of the learned trial judge, a hearing of the appeal should be conducted in a relatively short space of time. This is not to say we are not mindful of other matters that are before us,” she said.
After giving case management deadlines, which set out specific dates for written submissions to be laid over to the court by both parties, she urged that they be observed.
Attorney General (AG) Williams told reporters shortly after the hearing had concluded that Nandlall must be disappointed as October 4th is not an urgent date. Asked if he was disappointed with the court’s decision to grant the application, he responded in the negative, noting that “Mr. Nandlall asked for an early date and he didn’t get it.”
The AG acknowledged that the date set is very close to the elections date. “Exactly…that is why I am saying he must be disappointed,” he said.
Nandlall, when asked later to react to the court’s ruling, said that having regard to the fact that the court is going into recess, “it is a date we would have to accept. Fortunately, the court recognised the importance of fixing a date for early hearing. Had the court not done that, it is quite possible a date would have been fixed very close to national elections.”
He then told reporters that the LGE are not as important as the national elections. “It is the national elections really that we are absolutely concerned about. So, I am not disappointed. In fact, I am pleased that the court has recognised the importance of the issues which this case deals with and the court has recognised the importance of hearing and determining those before local government elections. Local Government Elections can always be postponed. It’s not fixed in stone. The minister can reissue a date,” he said, while adding that he doesn’t see any harm done if the court is to rule in a particular way that would cause the elections to be postponed.
He said that given the date set, there is time left before the 2020 elections to approach the Caribbean Court of Justice (CCJ) if needed.
Earlier in the day, Williams was adamant in his arguments that the court had no jurisdiction to hear the case at this juncture and made it clear he was opposed to an early hearing on the challenge.
“I submit that the court has no jurisdiction to entertain this application as it relates to the legality and validity of the appointment of the Chairman of the Guyana Elections Commission and in effect the validity of the Local Government Elections,” he reiterated. Williams had advanced this very argument to the court on Wednesday and yesterday sought to add some weight to it.
The AG submitted that any issue affecting the validity of the LGE can only be dealt with in the High Court by way of a petition, which has to be filed after the elections are held.
He said that Nandlall’s application clearly questions the legality and validity of the appointment. “In effect, Mr. Nandlall is saying that the Local Government Elections cannot be validly conducted with the presence of Patterson as the Chairman because he was illegally appointed,” he said, while stressing that this equally questions the validity of the elections itself.
Williams stressed that an electoral process commences with the announcement of the date. “The date of the elections was published in the Official Gazette on July 18th. I am respectfully submitting that these elections can only be lawfully challenged after those elections are held and that has to be done by way of an elections petition—the reason being that any question as to the validity of the appointment and any irregularities and illegalities of these elections cannot be made before the elections as the electoral process has already commenced with the publication of the date of the elections,” he said.
In arguing that the law is very clear and in response to a question asked by the Chancellor, Williams said that it wasn’t necessary to make his argument before the Chief Justice because at that point the electoral process had not been initiated.
He reminded the court that he had submitted authorities which support this point. “This motion is before the Court of Appeal when the preparation for local government elections are in train,” he stressed.
Justice Cummings-Edwards then asked Williams to move on to the question of urgency and the other issues he raised in his affidavit in answer to Nandlall. He began to speak about the urgency issue but shortly after deviated back to the jurisdiction of the court to hear the matter.
He submitted that Nandlall’s application had not established that the Chief Justice was in error when she made her decision. Williams used the occasion to again argue that the president was under no obligation to choose a person from the three lists that were submitted to him.
According to the AG, the state has spent a lot of “time and money” on this matter and the worst case scenario is that the court will say that the Chief Justice was wrong. He said while he would never preempt a CCJ hearing of the case, if the case is lost at that level, it would mean that the selection process will have to be repeated and in so doing elections will be delayed. He later signaled his readiness to file an appeal with the CCJ if necessary.
“It would mean that there will be no Chairman and the question of three years will loom large because no elections would be held,” he said, before again stressing to the court not to hear the matter given that preparations for elections are in full swing.
Williams told reporters outside the courtroom after the ruling that the oral arguments he made before the court will be reiterated upon during the appeal hearing. “No [I don’t have much preparations to do]…We think that the president properly appointed the GECOM Chairman. The Chief Justice confirmed that appointment,” he said, while stressing that he feels very strongly about his argument that the court has no authority to stop any election by an application made before it is held.
He confidently said that the state rebutted Nandlall’s application based on the law.
Meanwhile, Nandlall, in response to Williams’ earlier arguments, informed the court that the AG either did not read his application or misread it in its entirety. He reiterated that the application simply seeks to have an early date for the hearing and determination of the appeal of the Chief Justice’s ruling.
He stressed that the points and authorities raised and cited by Williams were premature and irrelevant at this stage.
Nandlall submitted to the court that there is nothing in the Court of Appeal Act that bars the court from hearing electoral matters.
He referred the court back to the case involving a challenge by an elector before the recently concluded Barbadian general elections. He presented a timeline to the court to show how quickly the matter was expedited by that country’s local courts as well as the CCJ.