The High Court decision which held that President David Granger has the legal power to unilaterally appoint retired Justice James Patterson as Chairman of the Guyana Elections Commission (GECOM) is being challenged in the Appeal Court, where the first of several hearings commenced on Wednesday.
Attorney-at-law Anil Nandlall appeared before the court on behalf of People’s Progressive Party Executive Secretary and Member of Parliament Zulfikar Mustapha, in whose name the challenge was mounted against a ruling handed down by Acting Chief Justice Roxanne George.
On June 8, 2018, Justice George ruled that the Constitution of Guyana allows for the President to unilaterally appoint someone to fill the position of GECOM Chair. The appointment was the centre of much contention, as Opposition Leader Bharrat Jagdeo had presented several lists of nominees to the President, which were all rejected because Mr Granger claimed they were not “fit and proper”.
This appeal comes just months ahead of the November 12, 2018 Local Government Elections and subsequent Regional and General Elections which are due by August 2020. In arguments Nandlall put forward on Wednesday, he premised the dates of the upcoming polls as just cause for the matter to be expedited. He added that he in fact filed an application requesting an early determination of the matter, just in case it reaches the level of the Caribbean Court of Justice (CCJ).
Nandlall contended that a decision should be rendered before the elections, since “the entire litigation” would become futile. The former Attorney General referred to the elections in Barbados, where a challenge beginning from the High Court of Barbados to the CCJ lasted just a few weeks, which permitted electors to cast their votes.
The overall thrust of Nandlall’s argument is that this case raises issues which affect “the very bedrock of our constitutional democracy, and it is directly related to the integrity of our electoral machinery”.
Nandlall claimed that even though he had filed his appeal on June 12, Attorney General Basil Williams only filed his Affidavit in Answer on Tuesday, and it was served on him on Wednesday.
The case will continue before the Appeal Court this Friday.
Just days after the President’s announcement, the Opposition had filed an injunction, on October 23, 2017, that sought to have the Court rescind the unilateral appointment of Justice Patterson as Chairman of the Elections Commission.
Apart from rescinding the appointment of Patterson, the PPP had also argued that he was unqualified for the post.
The PPP also petitioned the High Court to order President Granger to choose a person from the eighteen names submitted by the Opposition Leader.
“I hold that there is nothing before this Court to permit a finding that the President acted unlawfully or irrationally in resorting to the proviso to Art 161(2), or to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM,” the acting CJ had however ruled.
The Court’s position on the matter also said that the Opposition could produce no evidence that Patterson was unqualified for the position, while the CJ added that even if she had agreed with the contention that the appointment was unlawful, it still 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.”
However, Nandlall had responded that the Chief Justice’s then ruling had rendered redundant the Constitutional formula which requires a Chairman of GECOM to be appointed by a joint exercise and a process that involves the joint input of the President and the Opposition. At that time, Nandall headed a legal team for the applicant, while Attorney General Basil Williams’s team included Solicitor General Kim Kyte and two Barbadian Queens Counsels, Ralph Thorne and Hal Gollop, who all represented the interest of the State.
The PPP held that since Justice Patterson was a religious leader, this is a clear violation of criteria set out by President Granger to Jagdeo. It maintained the view that Patterson is unfit and improper for the job since he was a pall bearer at Peoples National Congress leader Desmond Hoyte’ s funeral, and that the judge “lied on his CV” when he said he was the Chief Justice of Grenada.
It was later revealed that Patterson merely acted in that capacity, and when questioned about it, he told media operatives that it was just a slip of the pen.
