Vikash Ramkissoon and Sarah Browne, whose appointments as Parliamentary Secretaries were recently nullified by the Chief Justice, have asked the Court of Appeal to stay that ruling until it has fully determined their appeal.
In their application seeking an early hearing, the appellants, along with the Attorney General, are arguing that unless a stay is granted, their appeal would be rendered nugatory, insofar as the declarations granted by the Chief Justice would take effect before the appeal is heard.
In her judgment of April 20, Chief Justice (CJ) (ag) Roxane George-Wiltshire SC found that in accordance with case law authority, their appointments as Parliamentary Secretaries and their membership of the National Assembly were unlawful and she ordered the Speaker of the House to prevent them from sitting in or participating in the business of the National Assembly.
Advancing the issues of law raised as being “matters of high constitutional importance,” the appellants have ascribed to the appellate court what they say is a “duty to protect the integrity of their appeal so that they are not rendered nugatory before they are heard and determined.”
Attorney General (AG) Anil Nandlall SC is contending on their behalf that having already been assigned “important constitutional and parliamentary duties,” in the absence of any interim protection from the court, Browne and Ramkissoon will not be able to discharge those important duties and responsibilities, which he says will be to the detriment of the public good and the people whom they represent.
Nandlall submits, too, that if the appellants are prevented from discharging those functions, and the appeal succeeds—which he says is likely—there is no way that the people of Guyana and the appellants would be compensated for the prohibition from performing their public and constitutional duties.
He then added that on the other hand, the respondent—Christopher Jones MP—will suffer no harm or prejudice if the appellants are permitted to sit in the National Assembly until the appeal is determined since they (Browne and Ramkissoon) are not voting members.
According to the AG, the public, constitutional and democratic underpinnings of the case places it in the category of “special reasons,” where a stay of the order appealed against, or its effect thereof is normally granted.
The Chief Justice had noted in her ruling that while Nandlall had previously supported the case law authority of Desmond Morian v. Attorney General, when he was in opposition, he abandoned the principles laid down in that case in the instant case.
The judge explained that the AG seemed to want to approbate and reprobate at the same time and skew the reasoning in the case to conveniently suit himself.
Nandlall argues, however, that though the Morian case had gone to the appellate court, the Chief Justice is not bound by it because the decision emanating therefrom dealt with a jurisdictional issue, as opposed to the merits of the appeal.
Noting that it is the ratio descendi of a case which constitutes binding precedent, Nandlall said that in those circumstances, the Court of Appeal in Morian did not constitute a binding precedent on the issues with which the Court was confronted.
According to him, the judge erred and was misconceived in law in relation to the reason for the decision in Morian, in that the issues raised in that appeal were wholly irrelevant and different to the issues raised in the matter before her.
The appellants are arguing that the Chief Justice erred and misdirected herself in law by failing to appreciate that although there are similarities, there are also differences in the constitutional regime pertaining to the appointment of Technocratic Ministers vis a vis Parliamentary Secretaries.
They say, too, that historically, Parliamentary Secretaries were appointed from among members of the National Assembly. The category of persons, who may be appointed as such Secretaries, they then depose, was expanded in the 1980 Constitution to include persons who were qualified to be elected.
Among other things, the AG said that the judge also erred and misdirected herself in law by using what he termed as the “wrong cannon of interpretation” to construe the relevant provisions of the Constitution.
Nandlall argues, too, that the Chief Justice’s decision is not supported by the evidence.
In addition to Jones, the Speaker of the National Assembly is also listed as Respondent.
Last September, Browne and Ramkissoon were appointed under Article 186 of the Constitution, which provides that Parliamentary Secretaries may be appointed from among persons who are qualified to be elected as members of the National Assembly.
Such Secretaries are appointed by the President to assist specific subject ministers and may respond to questions and debate matters in the Assembly; but they do not have voting rights.
Browne was appointed to Minister of Amerindian Affairs Pauline Sukhai, while Ramkissoon was appointed to Minister of Agriculture, Zulfikar Mustapha.
Through his attorney Roysdale Forde SC, Jones had argued that the appointments were unlawful.
He contended that the fundamental issue was not whether Browne and Ramkissoon were entitled and eligible to be appointed Parliamentary Secretaries, but whether they are entitled to be Members of the National Assembly by virtue of their appointment to the office of Parliamentary Secretary, at the time when they were elected Members of the House.
Referencing the Morian case, Jones had submitted that an Elected Member of the National Assembly not extracted from the List of Candidates, “cannot become a non-elected Member of the National Assembly by virtue of their appointment as Parliamentary Secretary.”
Jones had advanced that much turned on the fact that Browne and Ramkissoon were not extracted from the List of candidates of PPP/C to be the holders of any of the 33 seats that those Candidates have in the National Assembly.
