The Appeal Court yesterday upheld the legality of President David Granger’s unilateral appointment of retired judge James Patterson as Chairman of the Guyana Elections Commission (GECOM), saying that he did not act unreasonably in doing so.

In an almost three-hour-long ruling, the court disagreed with arguments that President Granger’s resort to the constitutional proviso in Article 161 (2) for the unilateral appointment of Patterson was unlawfully invoked and resultantly dismissed the appeal brought by PPP Executive Secretary Zulfikar Mustapha to a previous ruling by Chief Justice Roxane George.

The court declared that the various lists supplied to the president by Leader of the Opposition Bharrat Jagdeo was not done in the manner contemplated by the framers of the constitution. As a result, acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory, who heard the appeal, said the president could not thereafter be faulted for having invoked the proviso as he is legally entitled to do.

Upholding the Chief Justice’s ruling, the Justices of Appeal declared Patterson’s appointment to have been constitutional and that he was also “fit and proper” for the position as required by the constitution.

Expressing his disappointment with the ruling, Mustapha’s attorney, Anil Nandlall, said that he would be appealing to the Caribbean Court of Justice (CCJ), Guyana’s final court.

For his part, however, Attorney General and Minister of Legal Affairs Basil Williams, who expressed satisfaction with the ruling, said that the state’s legal team will be ready for any appeal.

The ruling was read, in parts, by all three judges, who agreed on the constitutionality of the appointment, although their reasons differed. Separate decisions are expected to be made available.

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. 

No engagement

Justice Gregory said that it was the intention of the framers of the constitution for the role of the president and opposition leader in selecting a chairman to be a consensual one. Commenting on the historical evolution of the amendment of the article, she said the reason for the consensual element in the selection of a chairman of GECOM stemmed from the mistrust which can arise between the two contentious political factions and the need for an effective government.

It was for this reason, she said, that Article 161 (2) evolved to provide a more substantial role for the leader of the opposition in the entire selection process. In the absence of such a process, she noted that the appointment could then be made unilaterally.

Concurring with both the Chancellor and Justice Persaud, Justice Gregory said that the constitution contemplated for the provision of only one list, and after finding that list to have been unacceptable, the president could have at that point activated the proviso without going on to consider the other two lists provided by Jagdeo.

Referencing Nandlall’s position that that it was one list which was provided, but that an additional 12 names were added for the president’s consideration, the judges all said that there was no need for even the additions as the constitution provided in any event, for the consideration of only six names.

Justice Gregory said that as opposed to a process of engagement between the opposition leader and the president, as envisioned by the constitution, what the former did was supply names from which the president was confined to merely just make a choice of one. This, she said, “Did not amount to consulting.”

In the absence of engagement—a consultative, consensual process—the judge said that Mustapha’s appeal fell. According to her, it was for both parties to have decided on the manner of engagement, “as contemplated by the constitution.”

Specifically addressing the president’s resort to the proviso, Justice Gregory said that this was not done in the ideal manner as the constitutional framers intended to the extent that it was not activated after consideration of the first six names.

She, however, said that the president could not be faulted for invoking the proviso after a prolonged eight-month process by which time the Head of State had said that the appointment was warranted in the interest of the public and citing concerns of delay.

The judge then reasoned that the president’s resort to the proviso was neither unconstitutional nor unlawful. She resultantly dismissed the appeal.

The Chief Justice had also declared in her ruling that only a list of six names needed to be considered as this is what was stipulated by the constitution.

No legal requirement

As the Chief Justice had found, the Justices of Appeal also found that the president was “entitled to resort to the proviso once he found the list that was submitted to be unacceptable….”

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.”

Also dismissing the appeal, Justice Persaud,

 addressing Nandlall’s arguments that reasons needed to be given by the president for the rejection of the 18 names, failing which Patterson’s appointment should also have been declared unconstitutional, said that this was not sufficient to have vitiated the appointment.

In fact, endorsing an argument made on behalf of the state by Barbadian Queen’s Counsel Hal Gollop and Ralph Thorne, the judge said that administratively there existed no legal requirement that reasons be given for administrative decisions.

The judge also said the failure to give reasons did not render the appointment unconstitutional.

He noted, too, that while the Chief Justice had referenced an earlier decision of hers in the case of Marcel Gaskin v the Attorney General et al 2017, in which she underscored the importance of providing reasons, she found rightly that in the instant case the failure to give reasons was not enough to render the appointment unconstitutional.

The other two judges concurred with Justice Persaud on this point.

In addressing the requirement in Article 161(2) for the list to be “not unacceptable” to the president, the Chancellor said that once the president so found, it was then a subjective decision for him to go ahead and make the unilateral appointment.

She said that though the Article did envision a consensual process between the president and opposition leader, having found the list to be unacceptable, “there is no dispute therefore that appointment of a chairman of GECOM is left for the president.”

As opposed to an argument advanced by Solicitor General Kim Kyte-Thomas, Justice Cummings-Edwards did, however, agree with the position proffered by Nandlall that an entire list could not be rendered invalid simply because some candidates could be deemed unacceptable even though on the very list the president may find at least one name to be acceptable.

In the instant case, the president had found all 18 names submitted to him to have been unacceptable.

The chancellor noted in her ruling also that with Patterson being a former judge, he did qualify for the president’s appointment of him  as being “fit and proper,” even if he had fallen in the category of “other fit and proper persons.”

She said that this latter category was merely an addition to the judicial category, which always existed.

The chancellor also addressed the issue of whether the president had acted reasonably.

Having regard to the fact that the president is empowered by the constitution, the court found that his appointment of Patterson was in keeping with the proviso as the list was found unacceptable to him and not in keeping with that envisioned by the constitution.

In the circumstances, it said the president did not act unreasonably in his resort to the proviso.

Also in its judgment yesterday, the appellate court ruled that in accordance with Section 6(2) (a)(1) of the Court of Appeal Act, it did have jurisdiction to hear the appeal, contrary to what the state had argued.

Notwithstanding the attorney general’s arguments that the head of state has immunity from suit, the chancellor found that the execution of his functions could nonetheless be reviewed by the court. She said it is trite law that a discretion must be exercised reasonably.

Justice Gregory added that contrary to what the attorney general had advanced, a mere proclamation issued by the Minister of Communities announcing the date for the upcoming Local Government Elections (LGE) was not enough to oust the court from hearing the appeal.

Williams had argued that Mustapha’s challenge to Patterson’s appointment touched and concerned the very election itself and would therefore have to be challenged by way of an elections petition as opposed to approaching the Court of Appeal.

‘A trend’

Reacting to the ruling, which he said he will appeal at the CCJ, Nandlall, the former attorney general who served under the PPP administration, said that while he was disappointed he was not surprised. 

He argued that though all his submissions were upheld and the judges demonstrated an understanding of the provision and what was required of them in interpreting same and what the powers of the president and opposition leader were, there was a “mental jurisprudential collapse” in their reasoning. He said that that was where the void lay, while reemphasising his satisfaction that they knew what the constitution says.

He said he understands that they know what the constitution says, “but it’s unfortunate that they did not rule… give effect to their knowledge.”

Following the appointment and swearing-in of the 85-year-old Patterson 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.

Mustapha was seeking orders directing President Granger to choose a person from the 18 names submitted to him by Jagdeo and an order rescinding, revoking, cancelling and setting aside Patterson’s appointment.

Nandlall had contended 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 had 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 argued, too, that the president did not act capriciously, with impropriety or in any partial manner in his rejection of the list.