Sarah Browne and Vikash Ramkissoon whose appointments as parliamentary secretaries were nullified by the Court of Appeal, are challenging that ruling before the Caribbean Court of Justice (CCJ).
They are arguing before the Trinidad-based court of last resort, that the local appellate court got it wrong in ousting them from the National Assembly for being unlawful members, since their names, while on their party’s list, were not among the 33 names extracted to take up seats in the National Assembly. Browne and Ramkissoon’s contention is that they had been duly sworn in pursuant to Article 186(3) as non-voting members since at the time of their appointments, they were not already elected members of the Assembly.
The Guyana Court of Appeal had ruled that since their names were on the party list, but not among the 33 extracted to take up seats in the Assembly, they could not qualify as being non-voting members of the Assembly; as parliamentary secretaries.
In its judgement of July 25th last, the Court of Appeal found that the appellants were elected members of the National Assembly within the meaning of Article 186 of the Constitution by virtue of the fact that they were on the list, even though not extracted therefrom and were accordingly not eligible to be non-voting members of the House by virtue of their appointments as parliamentary secretaries. The court went on to hold that since their appointments as parliamentary secretaries came about while they were on a successful list, their appointments were unlawful.
The Court premised its ruling on the case of Desmond Morian v Attorney General. Chief Justice (ag) Roxane George SC had relied on that case forming precedent by which she declared she was bound, when she adjudicated the challenge to Browne and Ramkisson’s appointments.
The Court of Appeal later affirmed her ruling.
Regarding the issue of whether the ruling in Desmond Morian constituted binding precedent on which the Chief Justice relied, the Court of Appeal stated clearly that it did, and that it was also bound by its own decision in that Morian case.
It was a preliminary issue which confronted the appellate court, and called into question whether or not it could stand by its previous ruling affirming that decision, which could have had implications for Browne and Ramkissoon’s matter.
Former Chief Justice (ag) Ian Chang in the Morian case, had ruled that persons who were on the list of candidates but not extracted, were considered to be elected Members of the National Assembly.
Among other things, Browne and Ramkissoon are arguing that the Guyana Court of Appeal erred in its finding that their appointments as parliamentary secretaries was unlawful and that they were not qualified to be elected. They advance also, that the court’s finding that a person on a successful list of candidates for a general election is an elected member of the National Assembly even though not extracted from the list to sit in the Assembly, was also an error in the judgement.
The appellants are now hoping that the CCJ would reverse and/or set aside the decision of the local appellate court, that they be awarded costs and for any other relief the court deems just to grant.
Legal arguments
In her April 20th, 2021 judgement Chief Justice George had 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 Attorney General Anil Nandlall SC had previously supported the Morian case when he was in opposition, he abandoned the principles when applied to Ramkissoon and Browne. It has always been the contention of Christopher Jones MP—who filed the action challenging the appointments—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.
The appellate court reaffirmed that ruling.
Senior Counsel Douglas Mendes on behalf of Nandlall, who represented Ramkissoon and Browne, had argued that the Morian case was not precedent for the issue to be decided regarding his clients. His argument was 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 contended that when Chief Justice George 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 Jones, had 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 had held the view that for this reason, Justice George would have been rightly bound by the decision therein.
Mendes’ point of departure from that view was 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.
The Court of Appeal had noted that it had not only decided the Morian case to the extent of jurisdiction only, but on all the substantive points raised.
The appeal before the local appellate court was presided over by acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud.
Background
In September 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 assist Minister of Amerindian Affairs Pauline Sukhai, and Ramkissoon 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 were entitled to be Members of the National Assembly by virtue of their appointment at the time 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 rested 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.
