Court can­not force pres­i­dent to choose from re­jected Ge­com nom­i­nees

-AG ar­gues in de­fence to PPP chal­lenge

Stabroek News Sunday - - FRONT PAGE -

Ar­gu­ing for the dis­missal of the PPP’s chal­lenge to the ap­point­ment of re­tired judge James Pat­ter­son as Guyana Elec­tions Com­mis­sion (Ge­com) Chair­man, the At­tor­ney Gen­eral has in­formed the High Court that Pres­i­dent David Granger acted within his con­sti­tu­tional power when he made the uni­lat­eral se­lec­tion and that he can­not be legally com­pelled to choose from the nom­i­nees he re­jected.

On Fri­day, an af­fi­davit in de­fence, which was sworn to by So­lic­i­tor Gen­eral Kim Kyte on At­tor­ney Gen­eral (AG) Basil Wil­liams’ be­half, was sub­mit­ted to the court in re­ply to the ap­pli­ca­tion by PPP ex­ec­u­tive Zul­fikar Mustapha seek­ing the an­nul­ment of Pat­ter­son’s ap­point­ment.

In it, Kyte de­fends the le­gal­ity of the ap­point­ment and also con­tends that Mustapha’s ap­pli­ca­tion, filed on Oc­to­ber 23, is “ab­surd, mis­con­ceived and void of le­gal rea­son­ing and merit.” It also ar­gues that the pres­i­dent does not have to give rea­sons for re­ject­ing any of the nom­i­nees for the post and that some of the ar­gu­ments made against Pat­ter­son’s se­lec­tion are disin­gen­u­ous, as they would also mean that the nom­i­na­tions of Christo­pher Ram and Joe Singh by Op­po­si­tion Leader Bhar­rat Jagdeo were im­proper.

“…His Ex­cel­lency the Pres­i­dent can­not be di­rected to choose a per­son from the lists of eigh­teen which he specif­i­cally re­jected,” she says.

“I will con­tend that for the ju­di­cial arm to en­ter­tain and grant such an ap­pli­ca­tion would en­croach on the very prin­ci­ples of sep­a­ra­tion of pow­ers and the spirit and in­tend­ment of the Con­sti­tu­tion and an af­front to the rule of law. I will fur­ther con­tend that such a di­rec­tion would be tan­ta­mount to a usurpa­tion of the pow­ers of the ex­ec­u­tive arm of Gov­ern­ment by the ju­di­ciary who can­not gov­ern,” she adds.

Kyte fur­ther ar­gues that the im­mu­ni­ties of the pres­i­dent are en­shrined in Ar­ti­cle 182(1) of the Con­sti­tu­tion, which states that the pres­i­dent is not per­son­ally an­swer­able to any court while per­form­ing his func­tions of of­fice. Ad­di­tion­ally, she says that the pres­i­dent is not re­quired un­der the pro­viso of Ar­ti­cle 161(2) of the Con­sti­tu­tion, un­der which he ap­pointed Pat­ter­son, to con­sult, con­sider and ac­count to the leader of the op­po­si­tion in the ex­er­cise of his own in­de­pen­dent and de­lib­er­ate judg­ment.

Sig­nif­i­cantly, the af­fi­davit does ad­mit that there was an agree­ment be­tween Granger and Jagdeo for the estab­lish­ment of a high-level team rep­re­sent­ing both sides to re­solve the ap­point­ment in the event that the third list was re­jected. How­ever, Kyte says, “I con­tend that any such agree­ment was void ab ini­tio since agree­ments to con­tract ultra out of the pro­vi­sions of the Con­sti­tu­tion would be vires, null and void….”

Mustapha’s ap­pli­ca­tion was filed af­ter Granger’s con­tro­ver­sial ap­point­ment of Pat­ter­son on the night of Oc­to­ber 19, af­ter he re­jected a third list of six nom­i­nees that had been sub­mit­ted.

Mustapha’s ap­pli­ca­tion noted that Pat­ter­son is a rev­erend, that is, a Chris­tian ac­tivist/leader, although the cri­te­ria Granger had set out for Jagdeo pre­cluded nom­i­nees who were ac­tivists in any field. It also noted that he is a mem­ber of the Ad­vi­sory Coun­cil on the Prerog­a­tive of Mercy, ap­pointed by the Pres­i­dent; an ad­vi­sor to the At­tor­ney-Gen­eral and Min­is­ter of Le­gal Af­fairs ap­pointed by the Pres­i­dent, the At­tor­ney-Gen­eral or some­one in the Pres­i­dent’s Gov­ern­ment and was paid eight hun­dred thou­sand dol­lars ($800,000) per month for that post; and ap­pointed by the Pres­i­dent to head a Com­mis­sion of In­quiry into the pri­son fire at Ge­orge­town; and part of a panel to re­view ap­pli­ca­tions for the po­si­tions of Chief Jus­tice and Chan­cel­lor of the Ju­di­ciary.

It said too that he was never ap­pointed Chief Jus­tice of Gre­nada in 1987, or at all, as was stated on his cur­ricu­lum vi­tae (CV).

It con­tended that Pat­ter­son is not qual­i­fied to be ap­pointed as he can­not be con­sid­ered to have the req­ui­site in­tegrity on the grounds that he was not the Chief Jus­tice of Gre­nada as stated on his CV; and that he can­not be or ap­pear to be po­lit­i­cally im­par­tial and in­de­pen­dent in the dis­charge of the func­tions of his of­fice.

The ap­pli­ca­tion also stated that the pres­i­dent has no power to make a uni­lat­eral ap­point­ment once a list of six names is sub­mit­ted to him, while not­ing that he also failed to give rea­sons for nam­ing the 18 nom­i­nees un­ac­cept­able. “By mak­ing a uni­lat­eral ap­point­ment of a Chair­man of Ge­com, the Pres­i­dent has de­stroyed a vi­tal and del­i­cate bal­ance which the framers of the Carter For­mula, which was cod­i­fied in Ar­ti­cle 161(2) of the Con­sti­tu­tion, in­tended, that is, that Ge­com shall con­sist of three (3) Com­mis­sion­ers rep­re­sent­ing the Gov­ern­ment

and three (3) Com­mis­sion­ers rep­re­sent­ing the Op­po­si­tion, presided over by a Chair­man pro­duced through a con­sen­sual process in­volv­ing the Leader of the Op­po­si­tion and the Pres­i­dent. In all the cir­cum­stances, the ex­er­cise of the Pres­i­dent’s dis­cre­tion and the de­ci­sion which has re­sulted there­from is un­rea­son­able, ar­bi­trary, capri­cious, pro­ce­du­rally im­proper, un­con­sti­tu­tional, in­flu­enced by im­proper mo­tives and made in bad faith,” it said.

‘In­suf­fi­cient grounds’ But ac­cord­ing to the af­fi­davit sworn to by Kyte on Wil­liams’ be­half, Pat­ter­son is a fit and proper per­son to be ap­pointed within the pa­ram­e­ters of Ar­ti­cle 161(2) of the Con­sti­tu­tion.

The af­fi­davit, which was re­leased to the me­dia by the AG’s Cham­bers yes­ter­day, con­tends that Mustapha’s sub­mis­sion is er­ro­neous in point of law and it is in­con­sis­tent with the pro­vi­sions in the pro­viso to Ar­ti­cle 161 (2) of the Con­sti­tu­tion, which in ef­fect pro­vides that where the Op­po­si­tion Leader fails to pro­vide a list of per­sons that are not un­ac­cept­able to the pres­i­dent, the pres­i­dent can pro­ceed to in­de­pen­dently ap­point a Ge­com chair­per­son.

“I con­tend fur­ther that the Pres­i­dent hav­ing deemed the three lists un­ac­cept­able is not obliged by the Con­sti­tu­tion or any law to select and ap­point a per­son from the list of names sub­mit­ted to him by the Leader of the Op­po­si­tion,” she says, while adding that hav­ing found the list un­ac­cept­able, the pro­viso to Ar­ti­cle 161(2) of the Con­sti­tu­tion would ap­ply and the pres­i­dent could pro­ceed to “ap­point a Judge or for­mer Judge or a per­son who would qual­ify for ap­point­ment as a Judge in Guyana or the Com­mon­wealth.

The AG’s af­fi­davit also con­tends that there is no ba­sis un­der the Con­sti­tu­tion for the pres­i­dent to state rea­sons for deem­ing each of the six names on the list or the en­tire list to be un­ac­cept­able be­cause he had already fur­nished Jagdeo with the cri­te­ria to qual­ify for Ge­com chair.

In her rul­ing on the in­ter­pre­ta­tion of Ar­ti­cle 161(2), Chief Jus­tice Rox­ane Ge­orge had held that the pres­i­dent is re­quired to give rea­sons for re­ject­ing nom­i­nees so that he could prop­erly move to ap­ply the pro­viso.

Kyte also says that the sub­mis­sion of the list does not mean that the pres­i­dent is obliged to ac­cept the list or per­sons named in it and if he is of the view that the list is de­fi­cient ei­ther in to­tal­ity or in the names that have been in­cluded, he can ex­er­cise his dis­cre­tion to deem the en­tire list un­ac­cept­able.

She notes that by way of a let­ter, dated Oc­to­ber 19, 2017, the pres­i­dent in­formed Jagdeo that the third list was un­ac­cept­able af­ter con­sid­er­ing ar­ti­cle 161(2) and the judge­ment of the Chief Jus­tice. She fur­ther states that at a meet­ing on the very day, Granger in­formed Jagdeo that he would be re­sort­ing to the pro­viso.

The af­fi­davit also con­tends that Pat­ter­son’s the­o­log­i­cal train­ing is in­suf­fi­cient grounds to deem him a re­li­gious ac­tivist. “I am ad­vised fur­ther and do ver­ily be­lieve that the Honourable Jus­tice Pat­ter­son is no longer a serv­ing Pas­tor and has not served as a Pas­tor since 2005. I con­tend fur­ther that it is du­plic­i­tous for the Ap­pli­cant to seek to al­lude to the past pas­toral role of Honourable Jus­tice Pat­ter­son when the Leader of the Op­po­si­tion on his third list nom­i­nated Mr. Onesi La Fleur, who is cur­rently a serv­ing Pas­tor,” Kyte says.

She fur­ther ar­gues that James be­ing a mem­ber of the Ad­vi­sory Coun­cil on the Prerog­a­tive of Mercy can in no way hin­der his abil­ity to be im­par­tial, ob­jec­tive and in­de­pen­dent.

Such an ap­point­ment, she ar­gues, demon­strates and en­hances his abil­ity to be im­par­tial, ob­jec­tive and in­de­pen­dent. “It is there­fore de­ceit­ful for the Ap­pli­cant to aver to the ad­vi­sory ca­pac­ity of Jus­tice Pat­ter­son, even as the leader of the op­po­si­tion in his first list nom­i­nated Mr. Christo­pher Ram, who also served as ad­viser to the Honourable At­tor­ney Gen­eral on the estab­lish­ment of the Joseph Haynes Law School,” she adds.

It was also made clear that Pat­ter­son as an ad­vi­sor to the AG did not re­ceive a salary of $800,000, but rather the ad­vi­sors $15,000, ex­cept for the chair­per­son who re­ceived $20,000, in keep­ing with Cabi­net’s ap­proval. The ci­ta­tion of the higher fig­ure, Kyte claims, was an “un­founded and mis­chievous as­ser­tion.”

She also states that the ser­vices of Pat­ter­son were avail­able to all min­is­ters and not just the AG, un­like Ram, whose ser­vices were vol­un­tary and spe­cific to the AG. Ram has since re­signed from the post.

“I fur­ther con­tend that since the Leader of the Op­po­si­tion placed Mr. Christo­pher Ram on his first list, both of them be­lieved that Mr. Ram was not un­fit be­cause he was an ad­viser to the At­tor­ney Gen­eral and Min­is­ter of Le­gal Af­fairs and as such it is hyp­o­crit­i­cal for the Ap­pli­cant to claim that Honourable Jus­tice James Pat­ter­son is dis­qual­i­fied for be­ing such an ad­viser. I fur­ther con­tend that the Leader of the Op­po­si­tion sim­i­larly felt that Ma­jor Gen­eral Joe Singh was fit and proper to be placed on his third list de­spite be­ing a paid ad­viser of the Pres­i­dent,” Kyte adds. Singh, fol­low­ing the re­jec­tion of the third list, has re­signed from all gov­ern­ment posts.

Kyte fur­ther points out that Singh was in­cluded on Jagdeo’s third list though he was ap­pointed more times than Pat­ter­son to con­duct Com­mis­sions of In­quiry.

With re­gards to the omis­sion of the word “act­ing” be­fore the Chief Jus­tice qual­i­fi­ca­tion on Pat­ter­son’s CV, Kyte ar­gues that the terms “Chief Jus­tice” and “Chief Jus­tice act­ing” are used in­ter­change­ably within the re­gion and in Guyana.

“I am in­formed by the Honourable Jus­tice Pat­ter­son and do ver­ily be­lieve that the fact that the word “act­ing” did not ap­pear af­ter the words “Chief Jus­tice” was not an in­ten­tion to de­ceive and fur­ther that does not neg­a­tive the fact that he held and ex­e­cuted the func­tions of the of­fice. I am in­formed by the Honourable Jus­tice Pat­ter­son and do ver­ily be­lieve that dur­ing his ten­ure of Chief Jus­tice act­ing and even af­ter that ten­ure ex­pired per­sons who knew him then and even to this day call him “Chief” or “Chief Jus­tice” or “My Lord” as the case may be and that is a com­mon prac­tice in such of­fices,” she said.

Pat­ter­son has said that the omis­sion of “act­ing” on his CV was a “slip of the pen.”

Mean­while, Kyte main­tains that the pres­i­dent acted con­sti­tu­tion­ally, out “of ne­ces­sity, to up­hold the rule of law, to pre­vent the cre­ation of a le­gal vac­uum with grave con­se­quen­tial chaos and in the in­ter­est of good gov­er­nance.”

Newspapers in English

Newspapers from Guyana

© PressReader. All rights reserved.