– CJ came out of pre-retirement leave to give decision
Attorney General and Minister of Legal Affairs Basil Williams, earlier this evening, declared that he was disturbed by the recent judgment of outgoing Chief Justice (ag.) Ian Chang and the manner in which it was made.
Back in July 2015, PPP member Desmond Morian had made an application to the Court, challenging the eligibility of Ministers Winston Felix and Keith Scott to sit in Parliament as technocratic ministers. The two were on the Official List of Electors for the APNU+AFC coalition.
The Attorney General described Chang’s ruling as a political matter. Noting that the Judge had come out of retirement leave to make a decision, Williams said a ruling of such a nature is bound to be controversial.
“The ruling in this matter signifies a dot on the administration of justice in this country…we are going to take whatever recourse we consider necessary in this matter. What would impel him to do that? I find it unusual and it’s something we will address further,” Williams said.
Among the options that can be pursued are to appeal the decision and file a stay of execution.
This afternoon at 13:00 hrs in the High Court, the outgoing Chief Justice ruled that two government ministers, Keith Scott and Winston Felix, could not sit in the National Assembly as un-elected members or technocrats because they are on the list of elected candidates for the coalition.
The Government Information Agency, in a release, noted that whilst an order directing the Speaker of the National Assembly Dr. Barton Scotland has not been made, the Chief Justice expects the Speaker to follow his ruling.
During the trial the attorney for Morian, former Attorney General Anil Nandlall, was given an opportunity to make substantive arguments in the matter despite objections by the Attorney General.
“I had appealed to the Chief Justice to just limit ourselves as he had no jurisdiction to proceed to hear the matter because it was not by way of an election petition,” Minister Williams explained.
The Chief Justice would have committed to hearing the entire matter before making his ruling and he undertook to communicate by way of notice when the Attorney General would present his substantive arguments on the case.
However, according to the GINA report, the Chief Justice failed to communicate thereby denying the Attorney General the opportunity to present his substantive arguments. As a result, the Attorney General was not given an opportunity to respond to submissions made by attorney for the petitioner Mr. Nandlall.
At the time when the Chief Justice proceeded on pre-retirement leave, the parties had the understanding that the matter would have been re-tried before another judge.
“I was informed today that the matter was for decision at 1p.m. I’m very surprised that the learned Chief Justice would purport to proceed to give a decision without hearing from me,” Minister Williams contended.
Substantive aspects of the law
Minister Williams contended that the learned Chief Justice did not address his mind to section 98 of the Representation of the People’s Act. This was made pursuant of the provisions of Article 160 (3) (a) (v) which says that parliament may make provision for the extraction from the list and the declaration of name of candidates who have been elected.
Williams explained that this is provided in the Constitution and it is from this document that the parliament then subsequently makes provision in the Representation of the Peoples Act Cap1:03.
Section 98 says, inter alia, that when seats have been allocated to any list of candidates the representatives or deputy representatives of such list shall extract from the said list as many names belonging to candidates selected by him for the purpose as can be so extracted without their number exceeding the number of seats allocated to that list.
“Further if the representatives of the list could only extract names not exceeding the 33 seats that we have, how could it be said that the other members of the list are elected members?” Minister Williams questioned.
Therefore, after those names are extracted they now have to be sent to the Chief Election Officer who shall declare them in the order of extraction to be the name of candidates. So in other words you cannot have an elected member of any list until their names are extracted by the representative of the list and the Chief Election Officer declare those names in the order of the extraction to be names of the candidates on such list.
“It is fallacious to say that as you’re now saying that as a result of every member of the list being elected the President could not properly appoint Mr. Scott and Felix from being names on that list,” Minister Williams said.