Basil Williams
October 5 2018
At a hearing spanning some five hours yesterday, the Guyana Court of Appeal began hearing arguments in the appeal filed by PPP executive Zulfikar Mustapha to challenge the ruling upholding President David Granger’s unilateral appointment of retired Justice Winston Patterson as Chairman of the Guyana Elections Commission (GECOM).
Arguing on behalf of the state were Attorney General Basil Williams SC and Barbadian Queen’s Counsel Hal Gollop and Ralph Thorne, who have asked the court to affirm the decision of acting Chief Justice Roxane George that Patterson’s appointment by the President was constitutional and that he does conform to the criteria of being “fit and proper” as required by the constitution.
Attorney Anil Nandlall, the former Attorney General under the PPP administration and counsel for Mustapha, is, however, arguing that Patterson’s appointment contravenes the constitution and for this reason the ruling of the Chief Justice should be overturned.
The state yesterday presented preliminary objections to the court’s jurisdiction to hear and determine the appeal, which they say concerns issues related to the November 12th local government elections. Much to Nandlall’s disagreement, 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.
Acting Chancellor Justice Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory who are hearing the matter, however, gave Nandlall their approval to commence arguments on his substantive appeal, given the proximity of the local polls.
The Chancellor noted that the court will address the preliminary jurisdictional issues at a future stage and give its pronouncements on the state’s objections.
Nandlall is arguing that the Chief Justice’s ruling 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.
In her ruling of June 8th, Justice George dismissed Mustapha’s challenge 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 84-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 Opposition Leader Bharrat 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.
The proviso allows for the appointment to be made unilaterally, where the opposition leader fails to submit a list “as provided for.” Jagdeo submitted three lists, which were all rejected by Granger.
Justice George found that the president was “entitled to resort to the proviso once he found the list that was submitted to be unacceptable….”
‘It can’t be unilateral’
Nandlall is of the view that the judge completely misinterpreted the provision and the intent of the framers of that section of the constitution, which requires the process to be a bi-partisan participatory one with the opposition leader, whereby consensus is reached for the appointment.
Nandlall contested the state’s position, proffered by Gollop, that the unilateral power of the president as provided for in the proviso is an unfettered one and argued that the president is not entitled to a list of perfect candidates, but that the process affords for consensus, lying “somewhere between and acceptable and a person not being unacceptable, and this is why the double negative is used.”
The magic in the “Carter Formula,” which is embodied in the constitution Nandlall argued, is not in the appointment of the perfect candidate for either the president or leader of the opposition, but one who in the exercise of their powers is suitable from the list provided. “It can’t be a unilateral decision for either the president or leader of the opposition,” Nandlall stressed.
Refuting this position, however, Gollop argued that it could not be the intention of the framers of the constitution to have the president confine himself to a list presented by the opposition leader and it was for this reason that the proviso was included and carries the double-negative for emphasis “…not unacceptable to the president.”
He noted that the higher hand is given to the president in that decision-making process and not the opposition leader as was advanced by Nandlall, whom he said has suggested the proposition of lists of potential candidates being supplied infinitely.
Gollop said it could not make administrative or practical judicial sense for lists to be supplied “until doomsday.”
Nandlall is of the view that the president can only have resort to the proviso where the leader of the opposition fails to provide a list, or where he has supplied a list so absurd that it amounts to a “non-list.”
Given that Jagdeo had gone beyond six names and provided an additional 12, he argued that the president needed to make an appointment from one of those 18 names.
‘Fettering discretion’
To subscribe to such a position, however, Gollop argued that Nandlall was in effect advancing a fetter on the “unfettered discretion” afforded the president by the proviso which leaves the unilateral appointment up to him in the use of the words, “not unacceptable to the president.”
Against this backdrop, he said that since there exists no state of affairs to render the ruling of the Chief Justice as being capricious or the president’s appointment of Patterson to so be, then the ruling of the lower court to the Chairman’s appointment being fit and proper should stand.
Gollop argued that where a discretion is given, it could not be logical to then have that discretion be dependent on a consensus of another person, for failure to reach an agreement would render the very discretion nugatory.
He said that the resort to the proviso is all part of the entire selection process for appointing a GECOM Chair if the president finds the list supplied by the opposition leader to be unacceptable.
Nandlall contended, however, that to so hold would mean that the opposition leader’s role in the process would be reduced to that of a rubber stamp and would give the president carte blanche power. “That was not the intention of the provision,” he argued.
Nandlall said that he was not discrediting the power which the president has to appoint, but argued that the discretion was not absolute and he added that this was the most rudimentary principle of Administrative Law.
“All powers have limits,” he said.
Shirked
On the issue of the president’s failure to give reasons for rejecting the 18 names submitted by Jagdeo, Nandlall submitted that Chief Justice again erred in affirming Patterson’s appointment in the absence of such reasons being known.
He said that though the Chief Justice had previously ruled in the case of Marcel Gaskin v the Attorney General et al 2017-HC-DEM-CIV-FDA-160, in which she expounded on the importance of reasons being given, that “judicial adventurism” was shirked in the instant case.
But Thorne and Gollop argued that, administratively, there exists no law which requires that reasons be given for administrative decisions. They said that there is no such requirement at common-law, except where statute so prescribes.
According to the attorneys, while the Chief Justice found in the Marcel Gaskin case that reasons should have been provided, she did not find that the failure to so do resulted in a tragic error.
Gollop sought to also draw a distinction between not submitting reasons and having no reasons. He said that while one may argue that reasons were not given because there were no reasons or good reasons as to why the 18 names were rejected, such a reasoning could not clench the age-old legal principle which does not require a public functionary to give reasons for administrative decisions.
Arguing that there existed no basis for the Appeal Court to interfere with the lower court’s ruling as there is nothing capricious therein, the state is asking that Mustapha’s appeal be denied.
The case has been adjourned until 10.30 this morning, when Nandlall will continue presenting his submissions.
Referencing the Marcel Gaskin case, Justice George had noted that while it would be expected that the opposition leader would name persons who are prima facie fit and proper, it is the President who will ultimately make the final determination of who is a fit and proper person for the post since the list of persons must not be unacceptable to him.
The judge had said further that this meant the President had the final say in determining who would be appointed as Chairman of GECOM, albeit either from the list provided by the opposition leader or pursuant to the proviso, a person who falls solely within the judicial category as defined in Gaskin.
Quoting from the Gaskin case, the Chief Justice said, “The submission of the list does not mean that the President is obliged to accept the list or the persons named in it. If the President feels that the list is deficient either in totality or in the names that have been included, he can exercise his discretion to deem the entire list unacceptable.”
She had found then that, “If by not choosing any of the persons listed the President thereby finds the list unacceptable, the proviso to article 161(2) would apply and the President should then go on to appoint a judge or former judge or person who would qualify for appointment as a judge in Guyana or the Commonwealth to the post of Chairman of GECOM.”
It is against this backdrop that 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.
Justice George pointed out, however, from the case that this did not mean that the President was bound to appoint someone from a deficient list.
