GECOM Chairman’s appointment legal

addressing Nandlall’s arguments that reasons needed to be given by the president for the rejection of the 18 names, failing which Patterson’s appointment should also have been declared unconstitutional, said that this was not sufficient to have vitiated the appointment.

In fact, endorsing an argument made on behalf of the state by Barbadian Queen’s Counsel Hal Gollop and Ralph Thorne, the judge said that administratively there existed no legal requirement that reasons be given for administrative decisions.

The judge also said the failure to give reasons did not render the appointment unconstitutional.

He noted, too, that while the Chief Justice had referenced an earlier decision of hers in the case of Marcel Gaskin v the Attorney General et al 2017, in which she underscored the importance of providing reasons, she found rightly that in the instant case the failure to give reasons was not enough to render the appointment unconstitutional.

The other two judges concurred with Justice Persaud on this point.

In addressing the requirement in Article 161(2) for the list to be “not unacceptable” to the president, the Chancellor said that once the president so found, it was then a subjective decision for him to go ahead and make the unilateral appointment.

She said that though the Article did envision a consensual process between the president and opposition leader, having found the list to be unacceptable, “there is no dispute therefore that appointment of a chairman of GECOM is left for the president.”

As opposed to an argument advanced by Solicitor General Kim KyteThomas, Justice Cummings-Edwards did, however, agree with the position proffered by Nandlall that an entire list could not be rendered invalid simply because some candidates could be deemed unacceptable even though on the very list the president may find at least one name to be acceptable.

In the instant case, the president had found all 18 names submitted to him to have been unacceptable.

The chancellor noted in her ruling also that with Patterson being a former judge, he did qualify for the president’s appointment of him as being “fit and proper,” even if he had fallen in the category of “other fit and proper persons.”

She said that this latter category was merely an addition to the judicial category, which always existed.

The chancellor also addressed the issue of whether the president had acted reasonably.

Having regard to the fact that the president is empowered by the constitution, the court found that his appointment of Patterson was in keeping with the proviso as the list was found unacceptable to him and not in keeping with that envisioned by the constitution.

In the circumstances, it said the president did not act unreasonably in his resort to the proviso.

Also in its judgment yesterday, the appellate court ruled that in accordance with Section 6(2) (a)(1) of the Court of Appeal Act, it did have jurisdiction to hear the appeal, contrary to what the state had argued.

Notwithstanding the attorney general’s arguments that the head of state has immunity from suit, the chancellor found that the execution of his functions could nonetheless be reviewed by the court. She said it is trite law that a discretion must be exercised reasonably.

Justice Gregory added that contrary to what the attorney general had advanced, a mere proclamation issued by the Minister of Communities announcing the date for the upcoming Local Government Elections (LGE) was not enough to oust the court from hearing the appeal.

Williams had argued that Mustapha’s challenge to Patterson’s appointment touched and concerned the very election itself and would therefore have to be challenged by way of an elections petition as opposed to approaching the Court of Appeal.

‘A trend’

Reacting to the ruling, which he said he will appeal at the CCJ, Nandlall, the former attorney general who served under the PPP administration, said that while he was disappointed he was not surprised.

He argued that though all his submissions were upheld and the judges demonstrated an understanding of the provision and what was required of them in interpreting same and what the powers of the president and opposition leader were, there was a “mental jurisprudential collapse” in their reasoning. He said that that was where the void lay, while reemphasising his satisfaction that they knew what the constitution says.

He said he understands that they know what the constitution says, “but it’s unfortunate that they did not rule… give effect to their knowledge.”

Following the appointment and swearing-in of the 85-year-old Patterson a year ago, Mustapha filed an application, contending that the president had no power to make a unilateral appointment once a list of six names had been submitted to him. He made this argument while noting that the head of state had failed to give reasons for naming Jagdeo’s 18 nominees as unacceptable.

Mustapha was seeking orders directing President Granger to choose a person from the 18 names submitted to him by Jagdeo and an order rescinding, revoking, cancelling and setting aside Patterson’s appointment.

Nandlall had contended that the proviso takes effect only in the event where the opposition leader does not supply a list of nominees, while also claiming that the president was dutybound for stating reasons for rejecting the list provided to him.

The state had argued that the proviso was lawfully resorted to by the president and that in the absence of any impropriety, the president is not bound to provide reasons for rejecting the list. It argued, too, that the president did not act capriciously, with impropriety or in any partial manner in his rejection of the list.