Chief Justice (ag) Roxane George yesterday dismissed a challenge, brought by People’s Progressive Party (PPP/C) executive member Zulfikar Mustapha, to the unilateral appointment of Retired Justice James Patterson as Chairman of the Guyana Elections Commission (GECOM, by President David Granger.
The highly anticipated ruling came five months after extensive arguments were presented on behalf of the Respondent (the State) by Attorney General Basil Williams, Queen’s Counsel Hal Gallop and Queen’s Counsel Ralph Thorne, Solicitor General Kim Kyte and State Counsel Judy Stuart, against an injunction filed in the High Court by Mustapha (the Applicant) which sought to rescind the appointment of Justice Patterson as GECOM Chairman, on the grounds of unconstitutionality.
Essentially, the Chief Justice (CJ) ruled that under the Constitution of Guyana, the President enjoys the right to reject the list of names provided by the Leader of the Opposition, and appoint someone from the judicial category as Chairman of GECOM, as provided for under Article 161 (2) of the Constitution of Guyana. She therefore dismissed the application filed by Attorneys-at-Law Anil Nandlall, Manoj Narayan and Rajendra Jaigobin on behalf of Mustapha, and awarded cost in the sum of $250,000 to the Respondent.
Before delivering a 40-page ruling, the CJ addressed two preliminary issues with regards to jurisdiction of the Court in hearing and determining the matter and the Applicant locus standi to make the application.
The Respondent had argued that the appointment of the Chairman of GECOM under Article 161 (2) of the Constitution of Guyana is not enforceable by the Courts owing to: (i) the maxim ‘expressio unius est alterius’, and (ii) the executive power in the President to appoint a Chairman of GECOM being in the nature of a convention.
In other words, the Respondent argued the Court should restrain itself from engaging in the inquiry sought by the application. Despite the Respondent cited several sections of the Constitution, Fundamentals of Caribbean Constitutional Law, among others, the CJ ruled that the Court has jurisdiction to proceed with hearing and determining the matter since there is nothing ousting or even limiting its inherent jurisdiction.
Considering the interest of the Applicant, in his capacity as a citizen and a registered elector, and also considering his capacity as a member of the National Assembly representing a non-governmental party, the CJ ruled that the Applicant does have locus standi to make the application.
According to the facts of the matter, on December 21, 2016, Leader of the Opposition Bharrat Jagdeo submitted a first list of six names to President Granger for him to appoint a Chairman of GECOM. It was on January 5, 2017 that the President informed the Leader of the Opposition that he had found the six nominees on the first list to be unacceptable within the provisions of Article 161 (2) of the Constitution of Guyana.
On March 1, 2017, the Leader of the Opposition requested of the President some of the qualities which he would be looking for in a person who is to be appointed Chairman of GECOM, and by a letter dated March 14, 2017, the President provided a list of such qualities.
The Leader of the Opposition on May 02, 2017, submitted a second list with the names of six other persons for the President of appoint to the post. However, a month after the President informed the Leader of the Opposition that he found that list to be unacceptable within the criteria outlined by the Constitution of Guyana.
Subsequently, on August 25, 2017 the Leader of the Opposition submitted a third list of six names for the President to appoint a Chairman of GECOM. By a letter dated October 19, 2017, the President informed the Leader of the Opposition that he found the third list to be unacceptable and indicated that he would resort to proviso to Article 161 (2) of the Constitution and, without delay, proceeded to appoint and swear in Retired Justice Patterson as Chairman of GECOM.
In arriving at a suitable candidate for the post, the President took into consideration the ruling of the Acting Chief Justice in the case of Marcel Gaskin V AG et al, which was heavily relied on by the CJ in her ruling.
Among other things, the Chief Justice ruled that the President can resort to proviso Article 161 (2) of the Constitution of Guyana which permits him to act independently to appoint a person of the judicial category to be the Chairman of GECOM, which is a person who is presumptively fit and proper.
It was for the court to consider only the rejection of the third list, since the rejections of the first two lists were already accepted by the Leader of the Opposition. In arriving at a judgment, the issues regarding the third list were divided into two categories—substantive issues and preliminary issues.
For the substantive issues, the court had to decide whether (i) the appointment of Justice Patterson by the President was unconstitutional because the president had no power to make a unilateral appointment once a list of six names was submitted by the Leader of the Opposition; (ii) the President is required to give reasons for deeming the list submitted by the Leader of the Opposition unacceptable.
The court also had to decide whether (iii) the President failed to give any reasons for deeming the list submitted by the Opposition Leader unacceptable; (iv) a failure by the President to give reasons for deeming the list submitted by the Leader of the Opposition acceptable makes the appointment of Justice Patterson as Chairman of GECOM unconstitutional and therefore null and void and, (v) Justice Patterson is not qualified to be appointed Chairman of GECOM in accordance with and pursuant to Article 161 (2) of the Constitution of Guyana.
In dealing with the first issue, the Chief Justice said that it was held in the case of Marcel Gaskin V AG et al, that while it would be expected for the Leader of the Opposition would submit names of persons who are prima facie fit and proper, that it was the President who will ultimately make the final determination of who is qualified for the post since the list of persons must not be unacceptable to him.
According to the Acting CJ, “This is to say the President has the final say in determining who would be appointed as Chairman of GECOM albeit, either from the list provided by the Leader of the Opposition or pursuant to the proviso, a persons who falls solely within the judicial category.”
In relation to the second issue, the Respondent had contended that there is no basis under the Constitution for the President to provide reasons for finding the list and/or persons included therein unacceptable, since there is no duty to state reasons at common law, and that the cases demonstrate that the courts will interfere only where bad reasons have been given.
The CJ however ruled that the President ought to have and should have given reasons for his rejection of the third list submitted by the Leader of the Opposition in order to have properly sought to activate the proviso.
As it relates to the third issue, the court reminded that the Respondent submitted that the President did, in his final letter dated October 19, 2017 to the Leader of the Opposition disclose certain factors upon which the reasonable or rational exercise of his discretion was based, in resorting to the proviso, being that it was done in the “public interest” and to avoid “further delay”.
“The reasons of “public interest” and to avoid “further 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 Leader of the Opposition as being unacceptable. I therefore conclude that these reasons cannot be referable to explaining the unacceptability of the list and I therefore hold that in effect no reasons for rejection of the third list were given,” the Chief Justice said.
In examining the fourth issue, the Chief Justice referred to a framework provided by the President in the letter dated March 14, 2017 to the Leader of the Opposition by using information about the third list of persons according to their curriculum vitae.
She said that the persons on the third list included Major General (Rtd) Joseph Singh, Mr. Toni Housty, Mr. Sanjiv Datadin, Ms. Annette Arjoon, Mr. Onesi LaFleur and Mr. Krishndat Persaud, all make up both the judicial and non-judicial category.
GROUNDS CHALLENGING APPOINTMENT
The Chief Justice said that the applicant’s arguments that Patterson was not fit and proper for the post because he was a pall bearer at a “political segment” of the late President Desmond Hoyte’s funeral lacked clarity in what is meant by the term political segment.
“This objection is disingenuous and may even be considered ludicrous, suggesting as it does that paying respect to a departed colleague, friend of relative would mean that one subscribes to the political views and affiliation of the deceased.”
According to her, the applicant in the form of an exhibit submitted that Khemraj Ramjattan, then member of the PPP, at the time of Mr. Hoyte’s funeral, was also a pall bearer. She added that Mr. (Bharrat) Jagdeo, now Leader of the Opposition and then President of Guyana, also made remarks at the funeral.
In this regard, the CJ noted that it was difficult to see how the applicant could seek to use this example, but suffice it to say that Justice Patterson was or is affiliated with the PNC.
She further said the applicant’s arguments that Justice Patterson was not fit and proper because he misrepresented his appointment as Chief Justice in Grenada on his curriculum vitae could not stand, since she was provided with exhibits to support that Justice Patterson served as acting Chief Justice in the island nation.
“This evidence does indicate that Justice Patterson acted in such capacity, which is not dissimilar from person who acted as Chief Justice and Chancellor in Guyana for more than a decade—a notorious fact.”
The Chief Justice also ruled that the appointment could not be dismissed on the grounds that Patterson was an Advisor to the Government and a Christian activist because several persons on all three lists submitted by the Opposition Leader possessed those same qualities.
“Similarly, Mr. LaFleur, a nominee on the third list, has been a pastor and had held a senior position within his church. The Applicant himself has cast a shadow on Mr. LaFleur’s suitability by labeling Justice Patterson, who appears to have significantly less experience in religious bodies and work, as a Christian activist and thus unsuitable for the post of Chairman of GECOM, “the CJ added.
In addressing a submission on behalf of the Applicant which relies on a quote from Marcel Gaskin V AG et al, where the CJ stated that although a person may be fit and proper person to be appointed, he/she may nevertheless be unacceptable because it may be known that the person is not in the best of health or is otherwise unable to stand the rigours of being Chairman of GECOM, the Court noted that the Applicant adduced no evidence to substantiate that Justice Patterson was in such a position.
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