Appeal court set to rule on legality of GECOM Chairman’s appointment

James Patterson

After hearing further submissions on legal issues it wanted clarified, the Guyana Court of Appeal has said that it will deliver its ruling tomorrow morning on the challenge to the constitutionality of President David Granger’s unilateral appointment of retired judge James Patterson as Chairman of the Guyana Elections Commission (GECOM).

The court had initially set 2.30 this afternoon to rule, but did indicate that this would have been subject to how long arguments lasted at yesterday’s hearing.

The announcement was made by acting Chancellor Yonette Cummings-Edwards, who is hearing the appeal along with Justices of Appeal Rishi Persaud and Dawn Gregory.

The appeal, filed by PPP executive Zulfikar Mustapha, contends that Patterson’s appointment contravenes the constitution and for this reason the ruling of the Chief Justice upholding it should be overturned.

During a two-hour hearing yesterday afternoon, the court heard additional submissions on points of law it had instructed lawyers on both sides to address before rendering its decision.

The appellate court sought to ascertain whether by way of the proceedings commenced before it, it could grant to Mustapha orders directing President Granger to choose a person from the 18 names submitted to him by Leader of the Opposition Bharrat Jagdeo and an order rescinding, revoking, cancelling and setting aside Patterson’s appointment.

To this, Attorney General (AG) and Minister of Legal Affairs Basil Williams SC, who represents the state and against whom the appeal is filed, answered in the negative, while arguing that “the president is not personally answerable to any court in this civil proceeding or matter.”

Referencing Article 182 (1) of the constitution, which provides for immunities of the president and 111 (1), which deals with exercise of the president’s powers, Williams said that at the time the president made the appointment, he was executing the function of his office.

The performance of those functions, the AG said, were done in accordance with Articles 182 (1) and 111 (1). According to Williams, the Attorney General cannot be made to answer for the president, since the constitution makes no such provision for the AG to answer to answer for decisions of the president.

He argued too, that the State Liability Proceedings Act does not empower the AG to be named as a representative of, or for the president in any court.

Williams’ contention is that the AG cannot be made to answer for the president as it would amount to making him (the president) answerable to the court “through the backdoor” in violation to the constitution.

Williams said that the only challenge to presidential action under the constitution is by parliamentary action pursuant to Article 180, which provides for removal of the president for violation of the constitution or gross misconduct.

Vehemently disputing this argument, however, and citing case law examples, Williams’’ predecessor Anil Nandlall, who represents Mustapha said that it is always the AG against whom actions against the state are brought.

He said that while the president is immune from suit in his personal capacity, it does not mean that his actions cannot be reviewed, while noting that it is the Attorney General against whom such actions are brought.

Holding firmly to the principle that no one is above the law, the former AG said that once the president’s actions are reviewable, then the judiciary can make orders which are appropriate in the interest of justice.

As guardian of the constitution, Nandlall said, the judiciary has untrammeled power to grant the orders being sought by his client and issue appropriate directions once the constitution is violated.

“Indeed, if the court finds that the constitution has been violated, it is duty-bound to grant those orders or similar ones,” he added.

The court also sought questioned whether the role of the opposition leader in submitting a list under Article 161 (2) of the constitution is restricted only to the category of “other fit and proper persons.”

Both Williams and Nandlall agreed that it is not but they differed on the interpretation of the law. As he had previously argued, Nandlall reemphasised that the process had to be one which had the hallmark of consensus between both the president and opposition leader.

For his part, however, Williams echoed earlier sentiments that the president was constitutionally correct in resorting to a proviso to make the unilateral appointment as the 18 names submitted to him were deemed to have been unacceptable.

Nandlall said that the president is not entitled to the perfect candidate, but was confined to choosing one from the 18 nominees presented by the opposition leader. As a result, he argued that the president’s unilateral power had become diluted—though it still existed.

The former AG said that it helps to strike a balance and represents a position of confidence which can be enjoyed by both parties.

Also addressing the court on this issue on behalf of the AG was Solicitor-General Kim Kyte-Thomas, who contended that once the president found that the list was unacceptable to him, then he had the right to reject it.

She advanced that it was a subjective call, which can only be made by the president, and that the constitution had accorded a say to only him as regards a list being “not unacceptable” to him as president.

As to the court’s enquiry of whether the list remains valid where all six persons are deemed “not unacceptable,” the Solicitor-General again, noting the subjective nature of the choice the president has, said that if he so finds it to be unacceptable, whether one or all six persons, the entire list can be deemed unacceptable,

She said that even if the president finds that five of the six persons are acceptable, he can reject the entire list for the one person whom he finds to be unacceptable.

Kyte-Thomas said that questions of validity of the list and acceptability of a candidate resides solely with the president. “The validity of the list, therefore, is a question for the president since he must exercise the discretion to reject it or accept a person on it,” she added.

This argument did not, however, find favour with Nandlall, who said that the president needed to make a choice from one of the total of 18 names submitted to him by the opposition leader.

To this end, he said that the intention of the framers of the constitution was to provide the president with one choice from six names and not six choices since there is only one chairman to be selected.

Any other interpretation, he said, would “simply make a mockery of the constitution.”

Short of having a crystal ball, Nandlall said, the opposition leader will never be able to successfully undertake such a task. He said that when one looks at the manner in which the constitution has been interpreted for the past 25 years during which five chairmen were selected, no president was presented a perfect list

Nandlall argued that if credence were to be given to the approach proffered by the state, then it would mean that the opposition leader would submit names to the president, and no matter how suitable they may be, the president can still reject them and proceed to invoke the proviso to appoint a person of his own choosing.

“Such an interpretation will simply crush the intent of the framers of the Carter-Price formula, which was to achieve a consensual candidate from/an engagement between the Leader of the Opposition and the president, and not the unilateral appointment by the president of someone of his own choosing,” he said.

Mustapha’s appeal contends that the ruling of Chief Justice Roxane George should be overturned for, among other things, the president’s refusal to provide reasons for rejecting a list of nominees submitted by the Leader of the Opposition and his unlawful resort to the constitutional proviso for making a unilateral appointment.

Justice George had dismissed Mustapha’s challenge to the appointment as wholly misconceived, declaring, “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.”

Following the appointment and swearing-in of the 85-year-old Patterson almost a year ago, Mustapha filed an application, contending 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 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.

Nandlall is, however, contending that the proviso takes effect only in the event where the opposition leader does not supply a list of nominees, while also claiming that the president was duty-bound for stating reasons for rejecting the list provided to him.

The state, meanwhile, has argued that the proviso was lawfully resorted to by the president and that in the absence of any impropriety, the president is not bound to provide reasons for rejecting the list.

It is the state’s case that the president did not act capriciously, with impropriety or in any partial manner in his rejection of the list.

The state is also disputing the court’s jurisdiction to hear and determine the appeal, which it is contending concerns issues related to the upcoming November 12th local government elections.

To objections by Nandlall, Williams and his team are arguing that such a challenge must be mounted by way of an elections petition after the conclusion of the elections and must be taken before the High Court, which is vested with the jurisdiction for hearing such petitions.

Nandlall has, however, advanced that the Appeal Court does have the jurisdiction to hear the matter, while vehemently disputing that his client’s challenge has anything to do with the holding of the elections or anything connected thereto.

He is adamant that the challenge before the court has to do with only the constitutionality of the appointment of Patterson as Chairman of GECOM.

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