The Guyana Court of Appeal has announced that it will rule sometime next week on the appeal brought by PPP executive Zulfikar Mustapha challenging the Chief Justice’s ruling upholding President David Granger’s unilateral appointment of retired judge James Patterson as Chairman of the Guyana Elections Commission (GECOM).
The announcement was made yesterday morning by acting Chancellor Yonette Cummings-Edwards, following the conclusion of arguments from the state, against which the action was brought, and counsel for the appellant.
Justice Cummings-Edwards said that notices will be sent out informing both sides of the exact date the court’s ruling will be delivered, but assured that it will be in the new week.
The court is also likely to rule at the same time on objections raised by the state before the commencement of the appeal hearing in which it sought to dispute its jurisdiction to hear the case.
Addressing the court on Thursday, Attorney General (AG) Basil Williams SC had argued that since Minister of Communities Ronald Bulkan had already published in the official gazette of July 18th, 2018 that Local Government Elections (LGE) would be held on November 12th, 2018 the court could not hear the matter as it would essentially be dealing with matters touching and concerning the very elections, which can only be heard by elections petition.
As a result, the AG, who is listed as the respondent in Mustapha’s appeal, said that the elections must first be allowed to be held and any aggrieved person can thereafter mount a challenge through an elections petition.
He advanced, too, that such a challenge could only be mounted before the High Court, which has the jurisdiction to hear such matters and not the Court of Appeal.
Disputing Williams’ arguments, however, attorney Anil Nandlall, the former Attorney General under the PPP administration and counsel for Mustapha, said that his client’s challenge has nothing to with the elections and does not warrant an action being brought by petition.
Williams is contending that since the position and appointment of a Chairman of GECOM is so central to the execution of elections, whether local or general, any challenge against that person’s appointment is connected to the elections itself.
He argued that since the entire elections process has long commenced, any grievance connected thereto has to await the completion of those elections.
He said that the nation’s elections process commenced since July, when the Minister announced that polls would be held on November 12th, followed by nomination day, which was held some two weeks back for contestants.
But his predecessor is adamant that his client’s challenge deals solely with only the constitutionality of the appointment of Patterson as Chairman of GECOM and is in no way connected to the elections.
Asked by the Chancellor whether his position was that the Minister’s declaration of the date for elections operated to place a stay on all extant court proceedings, the Attorney General answered in the affirmative.
In fact, he added, the court should not hear the challenge since it was not vested with the jurisdiction to hear elections petitions as the High Court is.
That apart, Williams argued that at the time acting Chief Justice Roxane George delivered her June 8th ruling to Mustapha’s challenge in the High Court, the country had not yet been preparing for elections, nor had the Minister gazette the date for elections.
According to Williams, since all the elections processes were executed under Patterson’s chairmanship, it also questions the validity of the holding of those elections, for which Patterson is Chair of the Elections Commission.
He surmised that by extension, Mustapha’s challenge questions whether councillors can be validly elected at the elections to be administered and conducted by Justice Patterson on November 12th.
It is against this backdrop that he submitted that the validity of the appointment of Justice Patterson, could not be challenged until after the LGE are held and results declared, with such a challenge to be mounted by way of an elections petition.
According to Williams since millions have already been spent to facilitate the elections process which has already commenced, the effects would be “catastrophic,” were the appellate court to reverse the Chief Justice’s decision.
Chancellor Cummings-Edwards, who is hearing the matter along with Justices of Appeal Rishi Persaud and Dawn Gregory, however, indicated to the AG that his preliminary objections disputing the court’s jurisdiction will be pronounced upon at a future date but gave Nandlall their approval to commence arguments on his client’s appeal, citing the close proximity of the local polls.
In this regard, the state has asked the court to uphold the ruling of Justice George that Patterson’s appointment by the President was constitutional and that he does conform to the criteria of being “fit and proper.”
According to the former AG, his client’s challenge is one which any citizen is entitled to mount and at any time. He said he knows of no principle where a person has to await the expiration of a particular event before initiating legal proceedings.
He argued, too, that it is the Chief Election Officer of the GECOM under whose hands elections are held and not the Chairman of the elections commission. The GECOM, he said, is merely the administrative body.
To his client’s substantive appeal, 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.
Justice George had 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.
Nandlall is, however, contending that the proviso takes effect only in the event where the opposition leader does not supply a list of nominees, while adding that the President was duty bound for stating reasons for rejecting the list provided to him.
The state, meanwhile, has 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 is the state’s case that the President did not act capriciously, with impropriety or in any partial manner in his rejection of the list.
In addition to the AG, the state’s legal team comprises Solicitor General Kim Kyte-Thomas and Barbadian Queen’s Counsel Hal Golllop and Ralph Thorne.
