–High Court upholds President Granger’s appointment of GECOM chairman

CHIEF Justice (ag) Roxane George- Wiltshire on Friday ruled that President David Granger acted constitutionally when he appointed Justice (ret’d) James Patterson as Chairman of the Guyana Elections Commission (GECOM).

“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 Article 161 (2) [of the Constitution] or to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM,” she said.

Executive Secretary of the opposition People’s Progressive Party (PPP), Zulfikar Mustapha in October 2017 moved to the High Court to declare that the appointment of Justice Patterson as Chairman of the GECOM is unconstitutional and null, void and of no legal effect. He had asked the Court to grant an order “rescinding, revoking, cancelling and setting aside the appointment” of Patterson, and to choose a person from the 18 nominees submitted to the President by Opposition Leader Bharrat Jagdeo.

Jagdeo submitted 18 names on three lists, all of which were rejected by President Granger. The PPP, through its Executive Secretary, also contended that Justice Patterson does not have the required qualifications nor integrity to be GECOM Chair. The applicant argued that the retired judge cannot be, or appear to be politically impartial and independent in the discharge of the functions of his office on the grounds that:

He is a member of the Advisory Committee on the Prerogative Mercy appointed by the President; an adviser to the Attorney-General and Minister of Legal Affairs, appointed by the President, the Attorney-General or someone in the President’s Government; was appointed by the President to head a Commission of Inquiry into a prison break at Georgetown, Guyana during the month of July 2017, and to be part of a panel to review applications for the positions of Chief Justice and Chancellor of the Judiciary; as well as served as a pall bearer at the funeral of Former President, Hugh Desmond Hoyte.

Additionally, he contends that President Granger violated the Constitution by “unilaterally” appointing Patterson and not a nominee from the lists provided by Jagdeo. However, Justice George-Wiltshire dismissed all of the aforementioned claims, describing them as “wholly misconceived”, and awarded costs to the respondent in the sum of $250,000. As the judge made her ruling, Mustapha, former President Donald Ramotar, and PPP Member of Parliament Nigel Dharamlall among other party officials paid keen attention.

The judge said while consensus is desired, the Constitution does permit a unilateral decision to appoint a chairman of GECOM on the rejection of the list submitted by the Leader of the Opposition (LOO). As such, the request for a declaration that the appointment of Justice Patterson is null, void and of no effect was refused.

WEAK EVIDENCE
Similarly, as it relates to the qualifications of Justice Patterson to be chairman of GECOM, the Chief Justice said, “This declaration is refused, as the evidence produced does not permit such a finding.”

The Chief Justice also rejected the Applicant’s request for an order directing the President to choose a person from the 18 names submitted to him by the LOP. “Such refusal is a consequence of my decisions above, and because of my decision that the only list relevant to this application is the third list.

In any event as stated, even if I had found in favour of the applicant, 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,” she declared. Finally, the request for an order to rescind, revoke, cancel and set aside the appointment of Justice Patterson on October 19, 2017 as Chairman of GECOM was also dismissed.

In giving her ruling, Justice George-Wiltshire said the preliminary issue which arises is which list or lists should be examined. Article 161 (1) of the Constitution of Guyana says, “There shall be an Elections Commission for Guyana consisting of a Chairman, who shall be a full-time Chairman and shall not engage in any other form of employment, and such other members as appointed in accordance with the provisions of this Article.”

Subsection 2 of the said Article says, 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 LOP after meaningful consultation with the non-governmental political parties represented in the National Assembly.”

NUMBER OF LISTS
The Chief Justice said that while the Constitution appears to contemplate only one list, three lists were submitted and were all rejected. She referred to the Gaskin case where the said court considered it a moot point whether more than one list should have been submitted, since both parties engaged in the process of allowing for the submission of more than one list.

In the current case, the President chose to resort to the proviso which indicates that the only reasonable option would be to examine the third list. The Chief Justice made it clear that the rejection of the first two lists would have already been accepted by the LOP. “The provision of subsequent lists so confirms. Put another way, by submitting other lists, the Leader of the Opposition clearly accepted the President’s determination that the previous list and ultimately the two previous lists were unacceptable. Thus, the prayer for a direction by this court for the appointment of one of the 18 persons named in the three lists provided cannot be sustained.”

The judge examined two preliminary issues, and five substantive issues. The preliminary issues were whether the court has the jurisdiction to hear and determine the application, and whether the applicant has locus standi to make the application. Both questions were answered in the affirmative.

As it relates to the substantive issues, the court was called upon to determine whether the appointment of Justice Patterson by the President was unconstitutional, because the President had no power to make a unilateral appointment once a list of six names was submitted to him by the LOO; whether the President is required to give reasons for deeming the list submitted by the LOP unacceptable; whether the President failed to give any reason for deeming the list submitted by Jagdeo unacceptable; whether a failure by the President to give reasons for deeming the list submitted by Jagdeo unacceptable makes the appointment of Justice Patterson unconstitutional and therefore null and void; and whether Justice Patterson is not qualified to be appointed Chairman of GECOM in accordance with Article 161 (2) of the Constitution.

Mustapha relied on the ruling in the Gaskin case that the applicability of the proviso is merely academic, since the President requested more than one set of names, and thus the President could not then activate the proviso. But Justice George-Wiltshire said that the ruling was against the backdrop of two lists having being submitted at the time of the hearing of the Gaskin case, and in the context of a finding that in fact the Constitution only contemplates the submission of one list.

She said, too, that Article 161 (2) seemed to contemplate that if the President rejected the first list, he could proceed to activate the proviso and select a Chairman from the judicial category; but that since more than one lists had already been provided, “my finding could not reverse the submission and rejection of the second list.”

In the Gaskin matter, it was held that it would be expected that the LOO would name persons who are prima facie fit and proper; and that it is the President who will ultimately make the final determination of who is fit and proper for the post, since the list of persons must not be unacceptable to him. Mustapha had contended that “not unacceptable” falls somewhere between “acceptable” and unacceptable”, but said that a person can be unacceptable but still not unacceptable.

“The latter part of this submission is clearly flawed”, said Justice George-Wiltshire, who noted that it was made clear in the Gaskin case that Article 161 (2) of the Constitution was intended to contribute to the balance and impartiality of the Elections Commission. As such, the President, she said, was entitled to resort to the proviso, once he found the list that was submitted to be unacceptable; but whether it was unacceptable would have depended on an objective analysis of the persons thereon, according to the criteria set out in the President’s letter that a candidate for appointment to the post of GECOM Chair should possess.

REQUIREMENT TO GIVE REASONS
The State had contended that there was no basis under the Constitution for the President to provide reasons for finding the list and or persons therein unacceptable, since there is no duty to state reasons at common law, and that the cases demonstrate that the courts will interfere only where bad reasons have been given.

In the Gaskin case, it was held that a decision maker should give reasons for decisions made, but the State submitted that the court is not bound by the Gaskin decision, since the English Common Law position is that there is no rule of law which binds one High Court to follow the decision of another comparable jurisdiction.

The State argued, too, that as a matter of legal comity, High Courts will follow their own previous decisions, subject to exactions where the court has to decide which of two conflicting decisions to follow, where a decision is at variance with a decision of the House of Lords, although the former decision has not been overruled, and where a decision was given per incuriam. “The respondent did not, however, attempt to show that this case falls within any of these three exceptions,” said Justice George-Wiltshire while noting that the State’s submission that the court is not bound by its decision in Gaskin failed.

“Even if it were not so bound,” she said, “this court would decline to not confirm its decision in Gaskin. To do otherwise would be to rule inconsistently on the same issue within a year.
“Nothing the respondent has advanced permits such a ruling, therefore the President ought to have, and should have, given reasons for his rejection of the third list submitted by the LOO in order to have properly sought to activate the proviso.”

Additionally, the Chief Justice noted that President Granger, in his final letter dated October 19, 2017 to the Jagdeo, disclosed certain factors upon which the reasonable or rational exercise of his discretion was based in resorting to the proviso. These factors being, that it was done in the “public interest” and to avoid “further delay”.

The judge said it was necessary to determine whether the aforementioned reasons satisfy the requirement for reasons in accordance with the ruling in the Gaskin case. She ruled that the reasons as stated in the letter by the President seek to explain why he may have sought to resort to the proviso, and the appointment of Justice Patterson as GECOM Chair after rejecting the third list as unacceptable. “I have, therefore, concluded that these reasons cannot be referable to explaining the unacceptability of the list, and I, therefore, hold that in effect no reasons for the rejection of the third list were given.”

The Chief Justice posited that the President is required to indicate either specifically or generally the reasons why persons on the list(s) were found by him to be unacceptable in order to justify him rejecting the entire list and resorting to the proviso. “There is nothing to suggest that this was done, nor was any submission made by the respondent to so indicate, so it must be concluded that the President has, thus far, failed to give reasons for his decision to reject the list as being unacceptable,” Justice George-Wiltshire stated.

WAS APPOINTMENT UNCONSTITUTIONAL?
The Chief Justice, in her ruling, examined the persons who comprised the third list as submitted by the Opposition Leader. The persons on the list are: Major General (ret’d) Joseph Singh, Teni Housty, Sanjeev Datadin, Annette Arjoon, Onesi LaFlue and Krishndat Persaud. The six persons formed part of both judicial and non-judicial categories.

She outlined that she examined the professions of each person listed by the Opposition Leader, and placing them in the respective categories, noting that it is against the background of the curricula vitae of the aforementioned persons that the appointment of Justice Patterson must be assessed.

The Chief Justice said that Justice Patterson having been appointed, must have satisfied the criteria laid out by the President. The GECOM Chair fell within the judicial category, which, in and of itself, indicates that he is fit and proper to hold the post.

Justice Patterson’s appointment was challenged on three grounds, namely: That he cannot be considered to have the requisite integrity on the ground that he was not Chief Justice of Grenada as stated in his curriculum vitae; he cannot be or appear to be politically impartial and independent in the discharge of the functions of his office, owing to his participation as a pallbearer at the funeral of former president Hugh Desmond Hoyte, and the appearance of his Facebook profile as a member of a group called ‘Rally around the People’s National Congress’; and that he is a reverend and Christian activist and therefore offends against one of the qualities stipulated by the President.

Mustapha, in his contention, argued that the lack of evidence supporting the appointment of Justice Patterson as Chief Justice of Grenada impugns the credibility of the GECOM chairman. Evidence presented to the court, which indicates that Patterson did act as Chief Justice, was found acceptable, and the court noted that such cannot be seen as impugning his integrity, as the Chief Justice pointed to persons who have acted as Chief Justice and Chancellor in Guyana for more than a decade.

The argument by Mustapha, through his attorney Anil Nandlall, that Justice Patterson served as adviser to the President and as such should be disqualified was found to be flawed, as the Opposition Leader submitted names of persons who served in similar capacities, and those include Major General (Ret’d) Joseph Singh, Major General (Ret’d) Norman McLean, and Attorney Christopher Ram.

“This all suggests a lack of consistency in the argument for the applicant, even indicating that it is unmeritorious and therefore untenable. The curricula vitae of the nominee of the LOP, as evidenced in the application, indicate that on the applicant’s side, there is a recognition that appointment to serve on public bodies or in the public service (meaning in the service of the public) does not ipso facto negate a person’s ability to serve as Chairman of GECOM. So this limb of the applicant’s case has no merit.”

POLITICALLY AFFILIATED
The Chief Justice noted, too, that in relation to the allegation that Justice Patterson is affiliated with the People’s National Congress (PNC) because he was a pall bearer “at a political segment” of the funeral of former President Hoyte was described as ludicrous. “Apart from a lack of clarity in what is meant by a “political segment” of the funeral, this objection is disingenuous and may even be considered ludicrous, suggesting as it does that paying respects to a departed colleague, friend or relative would mean that one subscribes to the political views and affiliations of the deceased.”

She then pointed out in her ruling that Minister of Public Security Khemraj Ramjattan, then a member of the PPP was also a pall bearer at Hoyte’s funeral and Jagdeo then President of Guyana had made remarks at the said funeral. “They paid their respects. It is therefore difficult to see how the applicant could seek to use this example in this light, but suffice it to sat that this cannot in any way lead to a conclusion that Justice Patterson was or is affiliated with the PNC of which the President is leader or that it impugns his integrity,” the Chief Justice declared.

In conclusion, Justice George-Wiltshire noted that the alleged membership of the Facebook group cannot in any way be accepted by this Court as evidence of an alliance with the PNC or any political party.
“It is common knowledge, in this technological age that one cannot necessarily control one’s appearance on social media sites. The exhibit discloses that Justice Patterson was added by one Sheldon Britton on January 22, 2016.

There is no explanation in the applicant’s affidavit about this. There is no evidence that Justice Patterson ever acknowledged such addition or participated in any way in the activities on this Facebook page, whether or not it is an official page of the PNC. Therefore, I do not accept the applicant’s contentions on this ground as a valid basis for challenging Justice Patterson’s appointment.

Moreover, the ground raised that Justice Patterson’s Curriculum Vitae states he serves as a pastor and as chairman of a local church body prevents bars his qualification to serve as GECOM Chair was also dismissed. The Chief Justice made it clear that on the PPP’s third list Onesi La Fleur, is a pastor and has held a senior position within his church for some time thereby casting a shadow on La Fleur’s suitability by labeling Justice Patterson, “who appears to have significantly less experience in religious bodies and work, as a Christian activist and thus unsuitable for the post of Chairman of GECOM.”

Mustapha in his contention has therefore disqualified La Fleur and defeated his argument against Justice Patterson. The Chief Justice ruled that his argument was meritless. The State was represented by Attorney General, Basil Williams; Barbadian Queens Counsel Hal Gollop and Ralph Thorne, and Solicitor General, Kim Kyte-Thomas while Mustapha was represented by attorneys, Anil Nandlall, Maonj Narayan and Rajendra Jaigobin.