THE Court of Appeal on Friday afternoon set October 4, 2018 as the date for the hearing of an appeal against the High Court ruling which upheld the appointment of Justice (Ret’d) James Patterson as Chairman of the Guyana Elections Commission (GECOM).

In June, Chief Justice (ag) Roxane George-Wiltshire ruled that the appointment of Justice Patterson was constitutionally done by President David Granger.

The Court of Appeal, led by Chancellor (ag) Yonette Cummings-Edwards and Justices Rishi Persaud and Dawn Gregory determined that the case will be heard on October 4, 2018, just over one month before the November 12, 2018 Local Government Elections (LGE).

Earlier this month, People’s Progressive Party (PPP) Executive Secretary Zulfikar Mustapha requested an early date for the hearing and determination of the appeal. Mustapha, who is represented by attorney Anil Nandlall, is contending that the setting of an early date for the hearing of the appeal is critical, as it is a matter of national and public importance.

Both Nandlall and Attorney-General Basil Williams, SC, who is representing the State, have indicated that they intend to appeal the court’s decision on the said matter at the Caribbean Court of Justice (CCJ) when the appeal is completed.

In reading the court’s decision, the Chancellor said that in view of the named date for LGE, the court has agreed that the appeal should be conducted in a short timeframe.

“We are of the view that given the pending date of the elections and given the fact that there are matters which touch and concern the decision of the learned trial judge, an appeal should be heard, or an hearing of the appeal should be conducted in a short space of time,” the chancellor said.

“This is not to say that we are not mindful of the other matters that are before us, but for such matters of national importance which have been dealt with before,” she added.
Justice Cummings-Edwards pointed to previous cases that were fast-tracked given their nature, and the fact that they were of national importance. As it relates to case management timelines, she said that a record of appeal must be prepared by August 27, while written submissions are to be filed and served by September 10.

The respondent has until September 24 to file and serve its response, while submissions in reply are to be filed and served, if necessary by October 1, 2018.

Just after the court determined the date for the appeal, the Attorney-General told reporters that he is not disappointed in the result, as October 4, 2018 does not reflect an urgent date.

“Mr. Nandlall must be disappointed; he asked for an early hearing but didn’t get it,” said Williams who noted that the very points raised in the fixed-date application will be raised in the substantive appeal. It should be noted that the court is going into recess sometime next week.

“We believe the only court with jurisdiction, once elections are afoot to deal with complaints would be the exclusive jurisdiction of the High Court after the outcome of the elections. It is a matter we feel strongly about and we will appeal. We feel the president properly appointed the GECOM Chair; the Chief Justice confirmed that appointment,” said the Attorney- General.

Williams iterated his earlier argument that the State’s position is that the LGE date has been announced and elections preparations are afoot.
“The law will tell you, quite clearly, the court shouldn’t stop any elections by an application made before the holding of the elections. The volume of money and activities that would have already been spent, it won’t make sense,” he stated.

RECESS
Meanwhile, Nandlall told reporters that he is not disappointed in the date provided by the court, since it will be going into recess soon. “It is a date we will have to accept,” the former attorney-general said, adding:

“Fortunately, the court recognised the importance of fixing a date for early hearing. Had the court not done that, it is quite possible a date would have been fixed very close to national elections.”

He noted, too, that the LGE are not as important as national elections, stressing that his applicant is more concerned about at national elections. Nandlall expressed satisfaction at the fact that the court has recognised the importance of the issues and the importance of hearing and determining those cases at the very least before LGE.

“The LGE can always be postponed; it is not fixed in stone,” he said. “The minister can reissue a date, and in any event, the LGE elections were originally fixed for December. I don’t see any harm being done if the court rules in a particular way which would cause the elections to be postponed,” said Nandlall who reminded that enough time has to be given for the aggrieved party to appeal to the CCJ.

The CCJ too, he said, must be given enough time to hear and rule on the case before general and regional elections.

Meanwhile, on Friday morning when arguments were presented before the court for just under an hour, Williams argued that the court had no jurisdiction to hear the appeal.

“I respectfully submit that this court has no jurisdiction to entertain this application as it relates to the legality and validity of the appointment of the Chairman of GECOM, and in effect the validity of the LGE to be held on November 12, 2018,” he said.

“I further submit respectfully that this issue affecting the validity of the LGE can only be determined by the High Court exercising a special and exclusive jurisdiction conferred upon it by Article 163 (1) (b) i.”

He posited that the High Court could determine any question, whether generally or in any particular way, an election has been lawfully conducted.

“The Motion before the court seeks to abridge the time to hear the appeal that has been filed here,” said the Attorney-General, who noted that the affidavit in support of the Motion filed by Nandlall “clearly questions the legitimacy and validity of the upcoming elections.”
“In effect, the learned attorney is saying that that the LGE cannot be validly conducted with the presence of Justice Patterson as Chair of GECOM, as he was unlawfully or illegally appointed,” Williams told the court, while stating that a date has already been announced for the elections, as it was published in the Official Gazette on July 18, 2018.

“I submit that those elections to be held in November can only be lawfully challenged after elections are held by way of elections petition. Questions as to the validity of the appointment of the GECOM Chair cannot be made before elections, since the electoral process has commenced by the publication of the Elections Day date. The law is very clear,” the attorney-general added.

According to him, the elections process began on July 18, while clarifying that the point could not be made before the trial judge, as the elections process had not started.
“The effect, therefore, is since Article 163 (1) (b) I establishes jurisdiction in the High Court, it would follow that only special jurisdiction in the High Court could entertain the Motion,” the attorney-general said.

The High Court, he stressed, cannot entertain the case in its ordinary jurisdiction, and as such “this court would be acting in vain.”

URGENCY
When asked by the court to address the question of urgency, Williams declared that the Ventose case, as was relied on by Nandlall, was not applicable to the existing case, but noted a myriad of cases which supports his contention.

“I respectfully submit that the applicant has not established that he has an arguable case that the Chief Justice erred in her judgment,” Williams said, adding:
“His Excellency resorted to the proviso of Article 162 (2), and did so properly; and that was confirmed by the Chief Justice. The President is not obliged to select anyone from the three lists provided by the Opposition Leader.”

As such, he said “the court ought not to retard the holding of elections” as he pointed to preparations for the November 12 elections.

On the contrary, Nandlall argued that the AG’s contentions were “wholly irrelevant, unmeritorious and premature”, while noting that as his client’s application only sought to persuade the court to fix an early date for the hearing and determination of the appeal filed relative to the appointment of Patterson.

Speaking on constitutional democracy and the supremacy of the Constitution, Nandlall said, “This applicant approached the High Court as the guardian of the constitution alleging that the constitution was violated when the appointment was made by the President of Justice Patterson.”

He noted that the complaint was initially entertained by the High Court which heard and determined the matter in favour of the state.

“The next step in the litigation process is contained in the Court of Appeal Act which confers upon every person who is aggrieved by a decision of a final nature of a high court judge to come to this court to appeal that decision.

“This applicant capitalised on that statutory right and has filed a Notice of Appeal against the decision of Chief Justice George. Nowhere in the Court of Appeal Act which confers that right of appeal are there exceptional cases touching and concerning electoral matters. Nothing at all!” declared Nandlall.

The attorney noted, too, that that could only be changed by statute. “If we are going to suspend the statutory right of litigants to appeal certain matters, we can only do that by statute. This application is simply to accelerate the process of having that appeal heard early as a result of issues involved, issues of national importance,” he said, maintaining that the Motion does not seek to abridge time.

Every appeal, he stressed. should be heard at the earliest practical time, adding that there is no timeframe fixed for the hearing of the appeal. He referenced, too, the timeline used in determining the appeal in the Ventose case, which matter was heard and determined in a matter of weeks.