January 6,2018.
Contesting the challenge to President David Granger’s unilateral appointment of retired judge James Patterson as Guyana Elections Commission (Gecom) Chairman, the state’s lawyers yesterday called for the entire application filed by PPP/C Member of Parliament Zulfikar Mustapha to be struck out, while arguing that he had no capacity to bring the action in the first place and therefore should not be heard.
Conversely, they argued that it is opposition leader Bharrat Jagdeo who must appear before the court and have his voice heard, since the transaction for the selection of a Gecom Chair, as constitutionally stipulated, is between the president and opposition leader.
In legal submissions yesterday afternoon before acting Chief Justice Roxane George SC, Barbadian Queen’s Counsel (QCs) Ralph Thorne and Hal Gallop, who have been retained by the government to assist in fighting its case, strongly contended that whatever would be proffered by the applicant could only be seen as “hearsay evidence.”
Thorne submitted that the constitution provides for the determination of a Gecom Chairperson by the president and opposition leader, “and no other party has a role in that determination.”
Thorne reasoned that as a result, neither Mustapha nor his application could be regarded as having been properly placed before the court, since he would not have been privy to the transaction between the two “constitutional creatures.”
For his part, however, attorney Manoj Narayan, one of Mustapha’s four lawyers, fired back, advancing that such an application does not have to be brought by only Jagdeo simply because he is opposition leader.
Narayan said that Article 161 gives power to the president and opposition leader to arrive at a consensus for the appointment of a Gecom Chairperson, but argued that while this transaction might be between these two figures, the process affects every Guyanese.
In particular, he noted that it affects the democratic right of every eligible voter, and for this reason, therefore, anyone who has attained the age of majority, can bring such an action.
Narayan rubbished the state’s arguments about hearsay evidence being presented by the applicant.
Justice George quizzed Thorne on the difference between the application being filed by Mustapha instead of Jagdeo, and that of the Attorney General (AG) being named a respondent on behalf of the president/State.
He said that the AG appearing on behalf of the state is constitutionally proper.
Thorne went on to further explain that the president and opposition leader are on different standing in law, as the former cannot be sued, while Jagdeo is not above civil suit, as the constitution does not clothe him with any such immunity.
For this reason, counsel argued that Jagdeo must himself apply and appear before the court to challenge the president’s appointment of the Gecom Chair.
“Mustapha has no business in this court, and as he cannot speak to the transaction between the president and the leader of the opposition, as constitutional creatures,” the lawyer said.
He declared further, “the application cannot be rendered from a busybody, who wants the court to grant an injunction.”
Thorne advanced that the applicant being an MP does not take him into the realm of being qualified to bring the action. “Our constitution can’t be reduced like that,” Thorne said.
He strongly contended, too, that while the president has not been named in the suit, there is an indirect attempt on the part of the applicant, to get at him vicariously by initiating proceedings against the Attorney General.
Thorne said that this was an act which ought to be condemned by the court. “It’s like coming at him (the president), through the back door,” the lawyer said.
The Chief Justice, however, immediately cautioned that it is the law for the AG to be sued. “That is the practice for which precedent supports,” Justice George reminded.
‘Element of discretion’
Commenting directly on President Granger’s appointment of Patterson, the lawyer said that while appointment of the Gecom Chairman has to be done after the president consults with the leader of the opposition, the proviso, also provided for by the constitution, vests in the president the power to exclusively appoint, though Jagdeo would have provided a list of nominees.
Thorne then directed his attention to the use of the term “not unacceptable,” to the president, in the constitutional provision regarding the nominees presented by leader of the opposition.
He said that contrary to how the applicant has viewed that provision, there is no mystery surrounding the phrase. The two double negatives “not unacceptable,” he said, are intended to place emphasis on the “element of discretion,” which resides with the president, who has to consider the list of nominees presented to him for consideration.
He argued that the president is given greater discretion on the issue of acceptability. The final decision, according to Thorne, resides with the president, though it is a transaction between him and the opposition leader.
Narayan, however, argued that constitutions are to be interpreted sensibly and in accordance with the spirit for which each provision was crafted, “not to create absurdity or to result in something undemocratic.”
To this end, Narayan noted that while the particular provision repeatedly speaks to “the president’s discretion,” consensus still has to be gleaned from the opposition leader, which is the intent of the framers of the provision.
Counsel pointed out at this juncture, too, that while the president has personal immunity, it does not mean that his actions in an official capacity are not “reviewable.” “It is his personal immunity while he holds office and not his actions as president which cannot be questioned,” Narayan argued.
In the more than two-hour hearing, Gallop, however, who addressed the court extensively on the doctrine of discretion, said that from a constitutional standpoint, the discretion of public functionaries cannot be fettered, though, they are expected to act in “good faith, not whimsically or capriciously.”
According to him, in exercising his discretion to unilaterally appoint Justice Patterson, President Granger did act in good faith, even giving reasons for rejecting the various list of nominees submitted by Jagdeo.
“Unlike the claim being made by the applicant, President Granger did provide reasons for rejecting those lists,” Gallop declared.
According to the Senior Counsel, the president did cite as reasons for his rejection that the lists were “unacceptable,” “as it failed to conform to the criteria set out in one of the president’s letters.”
Gallop said, too, that in the interest of the public, the president noted that he was no longer going to prolong the process for the submission of any other list from the opposition leader, as steps needed to be taken to have the appointment done.
Gallop also said that, as afforded by the constitution, the president was empowered to act in his own deliberate judgment, and so made the unilateral appointment. According to Gallop, “they may not like the reasons, but they have been given. It was a proper exercise of the discretion granted the president, in accordance with the constitution.”
He posited further, “The phrase, in his own deliberate judgment says it all, with regards to the appointment, and the president has not acted whimsically nor capriciously.”
To the state’s argument that the court does not have the jurisdiction to hear the application, Narayan advanced that it is purely a constitutional matter, which the High Court of Guyana is vested with the power and jurisdiction to hear and determine.
It is the duty of the Supreme Court he said, to ensure that the provisions of the constitution are at all times upheld.
At the commencement of yesterday’s hearing, both sides indicated to the court that submissions ordered to be filed were so done within the timelines set. Apart from the specific submissions made to the court, the Chief Justice requested no further clarifications.
Yesterday’s hearing had been set for the lawyers to furnish the court with any clarifications needed, after the former would have received and examined the submissions.
When the case is called again at a date yet to be announced, it will be for the court to deliver its ruling on Mustapha’s application. Justice George informed that notices will be sent out once the date for ruling has been fixed.
‘Diversity to local jurisprudence’
In addition to QCs Thorne and Gallop, the state is also being represented by Attorney General Basil Williams SC, Solicitor General Kim Kyte and attorney Judy Stuart-Adonis, who were all in attendance at yesterday’s hearing.
However, only Thorne and Gallop addressed the court on the government’s behalf.
Meanwhile, the opposition’s legal team comprises Narayan along with former Attorney General who served under the PPP/C Anil Nandlall, and attorneys Priya Manickchand, and Rajendra Jaigobin.
Asked the reason for lawyers being outsourced to represent the state, and the reason attorneys from his chambers were not exclusively used, Williams told this newspaper “we wanted to add diversity to our local jurisprudence.”
He said that the two QCs also have a wealth of knowledge in the area of constitutional law and have practiced in many courts throughout the Commonwealth Caribbean.
According to the AG, with the exception of himself and one other senior counsel who specialises in drafting, the Chambers does not have seniors, and is somewhat limited in that regard.
“It is difficult to find silk (Senior Counsel) and that is why this government has been appointing Senior Counsel,” Williams said.
According to the AG, seniors are needed and their knowledge helps to “enrich our local jurisprudence.” He said, too, it is often a pleasure to practice alongside Caribbean counterparts with whom many local lawyers may have studied.
Patterson was sworn in as Gecom Chairman on October 19th, two and a half hours after Granger met Jagdeo, informed him of the rejection of a third list of nominees he had submitted, and about his selection of Patterson.
The unilateral appointment of the judge, which both Granger and the AG have sought to defend, has seen widespread condemnation from civil society.
Mustapha’s application contends that the president has no power to make a unilateral appointment once a list of six names is submitted to him, while noting that he failed to give reasons for naming Jagdeo’s 18 nominees unacceptable. “In all the circumstances, the exercise of the President’s discretion and the decision which has resulted therefrom is unreasonable, arbitrary, capricious, procedurally improper, unconstitutional, influenced by improper motives and made in bad faith,” it says.
