Following the ruling by acting Chief Justice (CJ) Roxane George on Friday last that the Constitution of Guyana allows for the President to unilaterally appoint someone to fill the position of Chairman of the Guyana Elections Commission (GECOM), Executive of the People’s Progressive Party (PPP) Zulfikar Mustapha, with the aid of his attorneys, today (Monday) filed an appeal.
Justice George’s ruling came after the PPP filed an injunction on October 23, 2017, to have the court rescind the unilateral appointment of Reverend Justice James Patterson as Chairman of GECOM.
Attorney-at-law and former Attorney General Anil Nandlall on behalf of Mustapha, filed the motion just days after President David Granger made the announcement.
Apart from rescinding the appointment of Patterson, the PPP also argued that he is unqualified for the post while asking the court to order the President to choose a person from the 18 names (three lists) submitted by Opposition Leader Dr Bharrat Jagdeo.
However, the acting CJ said that the Opposition could produce no evidence that Patterson was unqualified for the position, while adding that even if she had agreed with the contention that the appointment was unlawful, then it would not have been “permissible for this court to usurp the function of the President by directing him to choose a nominee from the third or any list.”
In their appeal filed at the Court of Appeal, and seen by this publication, it was outlined, inter alia, that “The Learned Hearing Judge erred and misdirected Herself in law when Her Honour misconstrued and misinterpreted the role of the Leader of the Opposition in Article 161 (2) of the Constitution of the Cooperative Republic of Guyana in so far as Her Honour’s interpretation or misinterpretation has reduced the role of the Leader of the Opposition to being merely perfunctory.”
Moreover, the appeal states that the “Learned Hearing Judge erred and misdirected Herself in law in construing Article 161 (2) of the Constitution of the Cooperative Republic of Guyana by failing to give effect to the intentions of the framers of the said Article.”
Article 161 (2) states that “Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Minority Leader after consultation with the political parties represented in the National Assembly, other than the party to which the President belongs.”
President David Granger had on multiple occasions declared that the lists provided by Opposition Leader Dr Bharrat Jagdeo as “unacceptable” because not all of the candidates met the requirement of being a judge or being eligible to be a judge.
It was explained on countless occasions that the Constitution was amended to include the Carter formula which was designed to expand the range of persons suitable to be appointed the GECOM Chairman (to not limit that pool of persons to Judges or those qualified to be Judges).
In their appeal the PPP also outlined, inter alia, that “The Learned Hearing Judge erred and misdirected Herself in law by finding that the President of the Cooperative Republic of Guyana is empowered to reject the list as unacceptable although one or more persons on that list is or are acceptable to the President.”
Moreover, the appeal states that “the decision of the Learned Hearing Judge is wrong, misconceived and erroneous in law as it has destroyed a delicate but fundamental balance in the composition of the Guyana Elections Commission which the framers of the Constitution intended to repose in a Chairman appointed by a formula captured in Article 161 (2) of the Constitution which ensures that such a Chairman enjoys the confidence and acceptance of both the Leader of the Opposition and the President.”
In a statement on the ruling on Friday, the PPP said that in violation of the letter and spirit of the Constitution, the ruling “seeks to legitimise a unilateral appointment of a GECOM Chairman and has crushed that crucial balance in the makeup of the Commission. A unilateral appointment is contemplated by the Constitution only in the rare and exceptional circumstance, where the Leader of the Opposition fails to provide a list of nominees to the President.”
Moreover, the party while outlining its intent to appeal had said, among other things, that the “ruling may, or has, paved the way for more executive unilateral appointments in situations where the Constitution require agreement between the President and Leader of the Opposition.”