The Court of Appeal is expected to hand down its ruling in the case of Mustapha vs. the Attorney General today. The case surrounds an appeal to a ruling made in June by Chief Justice (ag) Roxanne George that the President acted lawfully when he unilaterally appointed Justice (Retired) James Patterson as Chairman of the Guyana Elections Commission (GECOM).
The appeal was filed by People’s Progressive Party (PPP) Member of Parliament Zulfikar Mustapha.
On Tuesday, the powers of the President were the source of contention among the lawyers from both sides.
“No one, not even the President is higher than the law. In fact, the President, like everyone else, is answerable to a Court of law. This was the argument of Attorney-at-law Anil Nandlall, who along with Attorney General Basil Williams S. C. presented opposing views on the powers of the President under the Constitution of Guyana.
Appeal Justices, including Chancellor of the Judiciary (ag) Yonette Cummings-Edwards, commenced hearing arguments on the case earlier this month. However, last week Friday the Court requested the lawyers to submit further arguments on four points regarding the law. The Chancellor indicated that the Court saw it prudent to hear them before ruling.
The first question posed to the lawyers by the Court was whether the orders sought in Paragraphs three and four of the Fixed Date Application (FDA), dated October 23, 2017, or the effect of those orders can be granted by way of the proceedings at hand. Nandlall explained that this question sought to examine whether the court can order the President to do certain actions.
First off, Nandlall referenced Sections 24 and 25 of the High Court Act Chapter 03:02, which he says seeks to capture the remedial powers of the High Court—and that infinite power has been granted to the Court by Parliament.
According to Section 24, Subject to the provisions of any written law, the Court may in any cause or matter make any order as to the procedure to be followed or otherwise which the Court considers necessary for doing justice in the cause or matter, whether that order has been expressly asked for by the party entitled to the benefit thereof or not.
Section 25 states, ‘The Court shall, in every cause or matter pending before it, have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as the Court may think just, all the remedies or relief whatsoever to which any of the parties appear to be entitled in respect of any and every claim properly brought forward by him or them respectively in the cause or matter; so that, as far as possible, all matters so in controversy between those parties respectively may be completely and finally determined, and all multiplicity of proceeding concerning any of those matters avoided’.
“I do not think that the legislature could have been much clearer,” Nandlall pointed out. The lawyer held that the President is a creation of the Constitution of Guyana, and that the High Court has always been a guardian of the Constitution which, when violated, can be rectified by that same Court.
According to Nandlall, although the President is granted immunity under Section 182 of the Constitution of Guyana, which ensure that he is not dragged to Court in his personal capacity, the President is answerable to the Court through the Attorney General.
Section 182 (1) outlines, ‘Subject to the provisions of Article 180, the holder of the office of President shall not be personally answerable to any court for the performance of the functions of his office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him in his personal capacity in respect thereof either during his term of office or thereafter’.
‘Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him for anything done or omitted to be done in his private capacity,’ Section 182 (2) states.
In responding to Nandlall’s contention, the Attorney General argued that the President is the chief executive authority and the Commander-in-Chief of the armed forces. In this regard, Williams said that Section 182 (1) provides for the office of the President to afford the protection it deserves.
Williams asked, “If we say the President is immune. Then how can his (the President’s) actions be examined by the Court?” Williams held that the appointment of Justice Patterson was done under the functions of the Office of the President.
Rebutting Nandlall’s contention that the President is answerable to the Court through the Attorney General, Williams argued, “There is nowhere in the Constitution of Guyana that the Attorney General is answerable for the actions of the President. The entire Constitution is silent on the role of the Attorney General in this matter.”
Moving on to the second question submitted by the court on whether Article 177 of the Constitution has any bearing on the President’s role under Article 161 (2), Nandlall contended that he sees no connection between the two Articles. He pointed out that these two Articles outline a chain of events that leads to the appointment of a President.
Nandlall highlighted that Article 161 (2) deals with the appointment of a Chairman of GECOM, while Article 177 deals with the election of a President, after elections have concluded. Responding to the same question, Williams noted that Article 177 provides for a challenge under Article 177 (4).
The Attorney General explained that under subsection four of Article 177 anyone who is dissatisfied with the election of a President can move to the Court of Appeal, which has exclusive jurisdiction to hear and determine any question as to the validity of an election of a President.
Whether the role of the Leader of the Opposition in submitting a list under Article 161 (2) is restricted only to the category of “other fit and proper persons, was the third question.
Nandlall submitted that prior to the introduction of the Carter-Price Formula, the President was the lone appointer of a GECOM Chairman, and had a “narrow pool” of options to choose from. He went on to highlight that before the introduction of the formula, candidates for the post had to be judges, former judges and persons qualified to be appointed judges.
According to him, the category “any other fit and proper person” was added to the pool, to include the engagement of the Leader of the Opposition, which diluted the President’s power to make unilateral appointments.
Nandlall stressed that like the President, the Leader of the Opposition is also entitled to choose nominees from the category of a judge, former judge, and person qualified to be a judge, as well as the “any other fit and proper person” category.
In answering the question, Solicitor General Kim Kyte-Thomas responded in the negative. In this regard, she advanced that the Leader of the Opposition is not restricted to the category of “any other fit and proper person”, but can select from other categories also.
Both Nandlall and the Solicitor General submitted arguments on the final question, “Whether the list is still valid, if not all six persons are deemed unacceptable?”
The leader of the Opposition submitted three lists, which each contained the names of six candidates for the position. The President rejected the list as “unacceptable” and moved to make the unilateral appointment of Justice Patterson. Nandlall told the court, “No President would have found all six names palatable. Neither the President nor the Leader of the Opposition is entitled to the perfect candidate. They must reach each other half way.”
He put forward that any other 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. This is how it has been interpreted for years. It is one name the parties had to agree on”.
Section 161 (1) states, “There shall be an Elections Commission for Guyana consisting of a Chairman, who shall be a fulltime Chairman and shall not engage in any other form of employment, and such other members as may be appointed in accordance with the provisions of this article”.
Subsection 2, goes on to state, Subject to the provisions of paragraph (4), ‘the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation political parties represented in the National Assembly.
Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such judge’
Nandlall added, “The list must not only be pleasing to the President. But it must not be repulsive.
“The entire list must be acceptable for him (the President) to choose one person from it. If this is not done he (the President) would be limited of having a full choice. The list must maintain its integrity.”
One of the Appellate judges sought to query why the President failed to offer a reason in his rejection of the first two lists. Responding, the Solicitor General noted that the President provided reason for the rejection. She said that the President clearly set out the qualities of the persons he was seeking for the post, but the criteria were not met.
Rising at the bar table to also respond was the Attorney General who held, “Questions about reasonableness is not applicable to the President. We cannot go into the mind of the President. This is how it is in the Commonwealth and Caribbean.”
Concluding, Nandlall expressed that he was deeply saddened with the State’s contention that the President is not answerable to any Court. He said that Guyana is guided by the Rule of Law, and everyone’s actions, including the President’s, are reviewable by the judiciary. Nandlall reminded that there have been local cases in which the powers of the President have been “struck down.”
The lawyer further said that based on the State’s submissions it is asking the court to commit legal hearsay, adding that, “In any civilized society, no one is higher that the law.”
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