The Caribbean Court of Justice (CCJ) yesterday allowed the appeal of Sarah Browne and Vikash Ramkissoon and vacated the ruling by the Guyana Court of Appeal that their appointment as parliamentary secretaries was not valid.
The CCJ found that the interpretation of the case involving Desmond Morian v Attorney General, on which the original decision relied, produced “untenable consequences”.
Yesterday’s decision was read by Justice Winston Anderson who said that it was unanimous and authored by the CCJ’s President, Justice Adrian Saunders.
Lawyers for Ramkissoon and Browne had argued 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’s 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 judgment of July 25th last, the Guyana 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 Ramkissoon’s appointments. The Court of Appeal later affirmed her ruling.
Regarding the issue of whether the ruling in Morian constituted binding precedent on which the Chief Justice relied, the Guyana Court of Appeal stated clearly that it did, and that it was also bound by its own decision in that Morian case.
Two issues
According to Justice Anderson in arriving at its decision the CCJ considered two issues, whether the Court of Appeal was bound by Morian and whether the appointments of Browne and Ramkissoon were lawful.
Regarding the first issue he said that the court noted the principle of Stare decisis (a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case) for consistency and predictability in the law. However, the CCJ ruling said that while this principle is concerned with both results and the reasoning behind the results, it is predominantly the latter that forms the basis for the precedent and guides future decision making.
“If a Court of Appeal dismisses an appeal, especially on constitutional interpretation, on purely procedural grounds, making no assessment whatsoever of the correctness of the trial judge’s reasons for the particular interpretation, a future appellate court should be very hesitant to consider itself bound, especially by the reasoning of that trial judge,” Justice Anderson read yesterday.
He added, that in such an instance it is entirely within the court of appeal’s remit to evaluate fully the reasoning of the lower court and come to its own conclusion.
As it relates to the second issue, the court considered that it could be resolved by determining who is and how a person becomes an elected member of Guyana’s National Assembly.
It was pointed out that Article 186 of the Constitution was the main provision in dispute. The CCJ regarded other provisions in the Constitution that referred to the term elected members and qualified to be elected. Such provisions included articles 53, 60 101, 103, 105, 106, 113, 155, 160 and 232.
“The court found that for names that are on a successful list Morian created two classes of elected members. One class comprised real elected members whose names were extracted and who therefore could take the oath and can vote in the National Assembly and be appointed ministers or parliamentary secretaries,” Justice Anderson said.
He said the other class constituted elected members whose names were not extracted and who could not take the oath, had no seat in the assembly and could not be appointed a parliamentary secretary.
“Morian’s interpterion of elected members when applied to certain provisions of the constitution produced untenable consequences,” the CCJ judge said.
As a result, the court held that an elected member of the National Assembly is a member whose name is extracted form a successful list. It said too, that this interpretation allowed for a “coherent and consistent application of the term throughout the constitution”.
Additionally, the above interpretation, according to the CCJ, also aligns with the provisions of the Representation of the People Act.
“The appeal was therefore allowed and the orders vacated,” Justice Anderson said.
He pointed out too, that the appeal enabled the CCJ to address a constitutional issue that has posed challenges in the past, making its resolution significant to the public. The CCJ also ordered that all parties stand their costs in both courts.
Anil Nandlall SC, Attorney General; Douglas Mendes SC, Nigel Hawke, Solicitor General, Clay Hackett, and Shoshanna Lall, Deputy Solicitor General appeared for the Appellants. Roysdale Forde SC, Selwyn A Pieters, Dexter Todd, Darren Wade, and Sasha King appeared for the First Respondent Christopher Jones. C. V. Satram, Mahendra Satram, Manoj Narayan, Ron Motilall, and Chandanie Dyal appeared for the Second Respondent, the Speaker of the National Assembly.
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, MP Christoppher 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.
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.
