The issue of whether the ruling in the case of Desmond Morian v. Attorney General constitutes binding precedent, by which the appointments of Vikash Ramkissoon and Sarah Browne as Parliamentary Secretaries were nullified, was what consumed the attention of the Court of Appeal when the matter was called yesterday morning.
It is a preliminary issue confronting the appellate court, which calls into question whether or not it can stand by its previous ruling affirming that decision, which could have implications for the current matter.
The resolute position of Senior Counsel Douglas Mendes on behalf of Attorney General Anil Nandlall SC who represents Ramkissoon and Browne—the Appellants—has been and continues to be that the Morian case is not precedent for the issue to be decided regarding his clients.
He argues 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 whether persons on the list of candidates are elected members of the Assembly.
Against this background, he contends that when acting Chief Justice (CJ) Roxane George SC found that she was bound by the case and nullified the appointments, her reliance thereon as a precedent was misplaced.
For his part, however, Senior Counsel Roysdale Forde for the Respondent Christopher Jones MP—who filed the action challenging the appointments—argued that the Court of Appeal’s affirmation of Morian had not only been in relation to the issue of jurisdiction, but on all other issues presented in that case.
He holds the view that for this reason, Justice George would have been rightly bound by the decision therein.
Mendes’ point of departure from that view, however, is that in the absence of the appellate court having specifically heard arguments on the other issues—particularly the substantive one—regarding the construction of the Constitution and persons on the list of candidates being elected members of the Assembly, that issue could not be regarded as having been finally settled and binding.
When the matter was called back in November, Justices of Appeal Dawn Gregory and Rishi Persaud—two of the three judges who presided in the Morian appeal and are now sitting in the current appeal—had indicated that they needed to revisit the judgment to be refreshed as to what exactly was decided.
Both justices pointed out at yesterday’s hearing that when they affirmed the Morian decision, it was in fact not only in relation to the issue of jurisdiction, but on all the other legal points contained therein.
Citing a plethora of case law authorities, however, Mendes was vehement that since no issue apart from that of jurisdiction had been argued on the appeal in Morian, it cannot form the basis of any binding precedent on the core issue to be decided regarding Ramkissoon and Browne.
He went on to advance that notwithstanding the explanation from Justices Gregory and Persaud indicating that their affirmation of the case had been in relation to every issue, once not specifically argued they cannot be considered final.
The lawyer argued, too, that the transcript does not illustrate that the other issues had been fully ventilated.
Without that official record, which he said is the standard used by attorneys of what will be relied on in the reasons for a decision, he made the point that it cannot be binding; even if a judge were to say that that was his or her intended desire.
Acting Chancellor Yonette Cummings-Edwards—the other Judge hearing the current appeal along with Justices Gregory and Persaud, sought to enquire from Mendes whether the transcript’s reflection that the Morian case was being affirmed in full, would not suffice as confirmation that it pronounced on all the issues and that they were therefore specifically considered by the Court.
Mendes was adamant that they do not.
He is of the view that the appellate court is now bound by its decision of affirming Morian on the issue of jurisdiction and nothing else; arguing that if it now wishes to depart therefrom, it would then have to expand its quorum to so facilitate.
Forde said that while there is indeed nothing prohibiting the Bench from expanding itself to depart from a previous pronouncement; it would still first have to determine whether or not it is bound by its decision.
At the conclusion of the hearing yesterday, Chancellor Cummings-Edwards said that the Court will now take time to consider the submissions and if further arguments are needed, will convene another hearing.
If not, she said that the Court will announce when it will render its ruling on the preliminary issue.
CJ’s ruling
Mendes has previously argued that former Chief Justice (ag) 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.
“The issue before the Court of Appeal was only as to whether Justice Chang had jurisdiction to deal with the matter,” Mendes had 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.”
“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 had said, reemphasizing that the appellate court gave no pronouncement on that issue.
For him, that question remains an open issue for the appellate court.
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 AG Nandlall had previously supported the Morian case when he was in Opposition, he abandoned the principles when applied to Ramkissoon and Browne.
Mendes has confirmed Nandlall’s about-face on that ruling.
The Chief Justice had 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.
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, Nandlall has 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.
Background
In September of 2021, 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, 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 the PPP/C to be the holders of any of the 33 seats that those Candidates have in the National Assembly.
