Owing to a number of issues which have arisen, the hearing in the appeal filed by Vikash Ramkissoon and Sarah Browne, who are challenging the annulment of their appointments as Parliamentary Secretaries; has been deferred until those issues are resolved.
When the matter was called before the Court of Appeal yesterday morning, Senior Counsel Douglas Mendes on behalf of Attorney General Anil Nandlall SC who represents the Appellants—and Senior Counsel Roysdale Forde for the Respondent Christopher Jones MP—indicated their readiness to present arguments.
There were, however, a number of observations made by some members of the appellate panel, which the Court has said must first be resolved before the appeal is heard.
For his part, Justice of Appeal Rishi Persaud pointed to Mendes’ submission where he (Mendes) advanced that Chief Justice (ag) Roxane George SC’s reliance on the case of Desmond Morian v. Attorney General, when she nullified Ramkissoon and Browne’s appointments, was misapplied.
It is Mendes’ position that the Morian case, when it engaged the attention of the Court of Appeal, was dealt with only to the extent of the issue of jurisdiction and not on the substantive merits of the case.
Against this background, Mendes said that Justice George, in following the decision in Morian, wrongly thought that she was bound by the decision of the appellate court, which he said had only examined the jurisdictional issue.
He said that former Chief Justice Ian Chang in the Morian case, had ruled—as is being contended by Jones— that persons who were on the list of candidates but not extracted are considered to be elected Members of the National Assembly.
Mendes is contending, however, that the appellate panel in that matter, which comprised Justice Persaud, Justice of Appeal Dawn Gregory and Justice Franklyn Holder; did not consider the merits of the case, but only the issue of jurisdiction.
On this point, Mendes’ argument is that having not considered the question of whether persons on the list of candidates are elected members of the Assembly, the decision in Morian was therefore not binding precedent for Chief Justice George to have followed.
“The issue before the Court of Appeal was only as to whether Justice Chang had jurisdiction to deal with the matter,” Mendes said, before adding; “Our point is that you did not consider the question of whether persons on the list of candidates are elected members of the Assembly, and therefore your decision is not binding precedent on that point simply because you did not consider it.”
Mendes said that that question therefore remains an open issue for the appellate court, since there is no binding precedent on it.
Both Justice Persaud and Gregory who are sitting in the current appeal brought by Ramkissoon and Browne, have said that these are matters which have to first be resolved before the matter can proceed any further.
Though Mendes has said that he has no objection to Justice Gregory hearing the current appeal, the Judge raised her concern, stating that she would need to first satisfy herself whether she “ought” to sit in the matter.
On this point she said she will have to review the Morian judgment to ascertain what exactly was her and the Court’s ruling; with Justice Persaud saying that Mendes’ advancements regarding the Court only addressing the issue of Jurisdiction in Morian, “is something that we would have to clarify in our minds.”
Noting Morian having been decided in favour of Nandlall who is now Attorney General, Justice Gregory enquired from Mendes, whether it is the position that now, in a different capacity, Nandlall is seeking to take a different view.
“That is in fact the case Your Honour,” Mendes said in reply, stating that his submission on behalf of Nandlall is that the decision of Chief Justice Chang in Morian “was wrong.”
To clarify, Justice Gregory then further enquired from Mendes whether it is now the view also that Nandlall’s submissions in the Morian case asking the Court to uphold Justice Chang’s ruling were also incorrect.
“That is absolutely correct,” was Mendes’ response; but he sought to stress that the substantive issue had not been appealed, but rather only Justice Chang’s jurisdiction to have heard Morian.
“The Court did not consider whether Chief Justice Chang was correct in his determination as to the interpretation of the phrase “elected member of the National Assembly,”” Mendes said, even as he again tried to reemphasize that the appellate court gave no pronouncement on that issue.
Acting Chancellor Yonette Cummings-Edwards who is the other Judge making up the panel in the extant appeal agreed that time ought to be given for the preliminary concerns to be addressed, before the substantive appeal is heard.
To this end, the matter has been adjourned to January 26th, 2023 for reports and possible hearing of the appeal.
The Appellants had previously asked for a stay, pending the hearing and determination of their appeal. There has, however, been no stay on Chief Justice George’s ruling, but Stabroek News understands that Ramkissoon and Browne are “on leave,” and “continue to be paid.”
In her April 20, 2021 judgment Chief Justice George found that in accordance with the Morian case, the appointments of Ramkissoon and Browne and their membership of the National Assembly were unlawful and she ordered the Speaker to prevent them from sitting in or participating in the business of the House.
Justice George had noted in her ruling that while Nandlall had previously supported the Morian case 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 argued, 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’s argument, too, is that the Chief Justice’s decision is not supported by the evidence.
Background
In September of last year, 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 Forde, 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 Morian, 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.
