The Guyana Court of Appeal in a unanimous decision has affirmed the ruling of former acting Chief Justice Ian Chang, that APNU+AFC ministers Winston Felix and Keith Scott could not hold seats in the National Assembly as non-elected Members of Parliament.
PPP member Desmond Morian had initiated the legal challenge to Felix and Scott taking up seats 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 candidates’ list.
Justice Chang had ruled in Morian’s favour and this decision was later appealed by government through Attorney General (AG) Basil Williams whose specific complaint before the appellate court was that Morian’s challenges ought to have been brought by way of an elections petition and not a notice of motion.
The Court of Appeal in delivering its hour-long judgment yesterday afternoon was keen on pointing out that the AG’s appeal centred on the procedure by which Morian’s claim was mounted and not on the merit of the actual appointment of the ministers.
The court accordingly dealt with the appeal brought.
In delivering his judgment, Justice Franklyn Holder who presided over the appeal along with Justices of Appeal Rishi Persaud and Dawn Gregory noted that contrary to the contention held by the appellant (AG), the High Court did have the jurisdiction to hear the matter as it did not fall within the ambit of circumstances requiring an elections petition.
Williams had previously argued that in accordance with the constitution, all elections matters/questions relating to the allocation of seats and the like had to be ventilated through the special jurisdiction of the High Court, by way of an elections petition.
Outside of this specific procedure, he argued that the High Court did not otherwise have the jurisdiction to hear and/or determine the matter.
Morian’s lawyer Anil Nandall had, however, refuted this position advancing that his client was never challenging the allocation of seats in the National Assembly arising out of the general and regional elections of 2015, but was rather challenging the president’s power of appointment of the ministers. Morian’s challenge came following the 2015 elections.
In agreeing with the chief justice, Justice Holder ruled that the High Court did have the jurisdiction to hear and determine the matter, noting that the issue of allocation of seats was separate and distinct from the ministerial appointment made by the president.
Against this background the judge said that under Articles 103 and 105 of the constitution, Felix and Scott had been appointed ministers of government and had nothing to do with seats being allocated to them in the National Assembly, and so the provisions of Articles 163 of the constitution requiring an elections petition could not be applied.
He said that such a petition was not needed while declaring the notice of motion filed by Nandlall to have been proper. In the circumstances, he dismissed the state’s appeal.
Also dismissing the appeal, Justice Gregory had also pointed out that the appeal filed by Williams specifically called for Morian’s challenge to have been heard by the special jurisdiction of the High Court through an elections petition.
In upholding Justice Chang’s ruling, Justice Gregory said it was clear that the challenge to the appointment of the ministers to the National Assembly was not a challenge to the qualification of persons to the Assembly.
Allocation of seats, she said, has a distinct contextual meaning from appointment of ministers in the way Felix and Scott were appointed.
Justice Gregory clarified that Morian’s challenge was not for allocation of seats. As a matter of fact, she pointed out that, that the allocation process had already ended when the applicant filed his motion challenging the appointment of the ministers.
Against this background she, too, dismissing the appeal, ruled that the case was properly brought by notice of motion.
Justice Persaud did not read a ruling, but expressly stated that he concurred with the rulings of Justices Holder and Gregory.
Because the case was one of public interest, the court ordered both sides to bear their own costs.
Meanwhile, in a comment to this newspaper following the ruling, Nandlall said he was happy that his position had been vindicated by the appellate court. He said what it did was uphold Justice Chang’s decision that President David Granger violated the constitution when he appointed Felix and Scott as technocratic ministers, although their names were on the list of candidates for APNU.
Nandlall’s contention from the inception has always been that technocratic ministers could not be drawn from names on the list of candidates for the election.
He opined that the framers of the constitution intended for technocratic ministers to come from outside of the political spectrum which he said was clearly expressed in the conjoint reading of Articles 103 and 105 of the constitution.
Nandlall reiterated that he commenced the proceedings by notice of motion because he was not challenging any aspect of the elections, neither was he challenging the allocation of seats in the National Assembly arising out of those elections.
“I was simply challenging the president’s power of appointment of ministers,” the attorney said.
He then went on to say that the constitution limits the president’s powers when he is choosing technocratic ministers to choose someone other than those on the list of candidates.
He said that in the result, Felix and Scott “were illegally appointed ministers and illegally sat in the parliament as unelected members and illegally received salaries for the past four years.”
He further added that regrettably the case languished in the judiciary for an unduly long period of time, pointing out that the decision came after the tenure of the ministers ended “so that in this sense one can say that justice was defeated.”
He, however, said that the decision will stand as guidance for the future so that hopefully these errors will not be made again by another president.
