APNU+AFC ministers Winston Felix and Keith Scott yesterday took up seats once again in the National Assembly yesterday after Attorney-General Basil Williams secured an interim stay of execution on a recent ruling that they could not hold sit as non-elected members.
At a hearing yesterday morning at the Court of Appeal, acting Chancellor Justice Carl Singh granted the interim stay of execution, which Williams said allows for the ministers to attend sittings of the National Assembly until the stay application is fully heard.
Williams on Wednesday filed a notice of appeal of the decision of former acting Chief Justice Ian Chang, who last Friday ruled that Citizenship Minister Felix and Junior Social Protection Minister Scott cannot continue to sit as non-elected members in the National Assembly since they were both elected as part of the coalition’s list of national candidates.
In keeping with Chang’s ruling, Felix and Scott did not take up their seats on Monday when the consideration of budget estimates continued but they both attended yesterday’s sitting of the Assembly.
Although the judge did not issue an order directing Speaker Dr Barton Scotland to disallow them from taking their seats, the Speaker announced that as a result of information regarding the court’s decision, they would not be occupying their seats.
He also said that he would have requested the two members not to occupy their seats.
“I can find no other way by which one must respond to a decision of the court other than by respect and submission. There was no equivocation… at acceptance. The acceptance of a decision of the court must be unequivocal at all times,” he had said, while noting that the first obligation is to obey the decisions of the court at all times and then proceed from there.
When the National Assembly met yesterday, Scotland announced that Felix and Scott would be allowed back in their places due to the interim stay of execution.
However, former Attorney-General Anil Nandlall, who had successfully argued the challenge brought against Felix and Scott by PPP member Desmond Morian, voiced his displeasure with the stay granted to Williams.
Morian had initiated the legal challenge to Felix and Scott sitting in the National Assembly as non-elected members and sought a declaration that they were not lawful members of the National Assembly and an order that they be prevented from sitting in the Assembly unless their names were extracted from the coalition’s list.
Nandlall said he found the granting of the stay to be “very strange” and questioned the reason for it. “What are you staying?” he questioned.
Nandlall, the former AG, argued that the orders which were granted by Justice Chang, are all declarations. Declarations, he said, are not orders which are coercive or prohibitive but rather declares a state of affairs.
“What are you staying? You don’t stay a declaration,” Nandlall contended.
Nandlall also said that while a copy of the AG’s appeal was served on him, he was not served with a copy of the application for the stay as it was made to the court ex parte.
“I got wind of it and I wrote to the court and I requested an opportunity to be present,” he said.
He added that he was then served with a copy of the proceedings as the case was in progress.
Nandlall said that he opposed the application and requested leave to file an affidavit in answer, which he has to do within the next five days. He noted that the Chancellor nonetheless granted the interim stay. “Stay of executions are not granted ex parte without hearing the other side. They have not heard me,” he, however, argued.
Williams said he did not serve Nandlall with the stay application because he felt that the matter was sufficiently urgent since there was a sitting of the National Assembly yesterday.
No official authority
Williams is appealing Justice Chang’s decision on the grounds that it cannot be supported in law and he erred when he found that Felix and Scott are not lawful members of, and cannot sit in the National of Assembly.
Williams is also contending that the judge fell into grave error of law and misdirected himself in law when he found that persons who are on the successful list of candidates are elected and therefore cannot qualify under Article 105 to be ‘non-elected’ Members of Parliament and who have not been chosen or selected from the list of candidates to be members of parliament are excluded from being selected by the president as persons who are qualified to be elected as members of the National Assembly.
The AG also contends that Justice Chang’s decision is fundamentally bad in law in that he failed to take into consideration the provisions of the Representation of the People Act and the National Assembly (Validity of Elections Act), Chapter 1:04.
According to Williams, Justice Chang also failed to consider that Article 163 (4)(a) of the Constitution of Guyana empowered Parliament to make provisions with respect to the circumstances and manner in which and the conditions upon which proceedings for the determination of any question under the article may be instituted in the High Court, which Parliament did by enacting the National Assembly (Validity of Elections) Act.
The AG further contends that Justice Chang at the time of the delivery of the decision was functus officio [without official authority] and added that his decision is in breach of the rules of natural justice by failing to give him a hearing before the decision was delivered.
The former Chief Justice, who had proceeded on pre-retirement leave, had returned to the bench to deliver the judgement.
