…says he wasn’t heard, to challenge decision

OUTGOING acting Chief Justice Ian Chang, in one of the most controversial acts on Friday, came out of pre-retirement leave and ruled that Citizenship Minister Winston Felix and his colleague, Keith Scott, Minister within the Ministry of Social Protection, cannot sit as technocratic ministers in the National Assembly.Government has since indicated that it will challenge the ruling, with Attorney General Basil Williams indicating that he was not given an opportunity to respond to the petition, and that the decision was flawed. Williams also questioned the motive of Chang coming out of pre-retirement leave to make a decision on a political matter. He said that by virtue of the President appointing someone to act as Chief Justice, it is inconceivable that Chang would usurp that role and come out of pre-retirement leave to announce his ruling.

At the time when Chang, as Chief Justice, proceeded on pre-retirement leave — which officially expires next week — the parties had the understanding that the matter would have been re-tried before another judge.

The decision on Friday came about as a result of a constitutional motion filed by PPP/C member Desmond Morian back in July last year, seeking legal intervention for the removal of Felix and Scott. The party had expressed concerns over the selection of Citizenship Minister Felix and Minister Scott as technocrats to serve in the 11th Parliament.

According to former Attorney General Anil Nandlall, who represented Morian, the APNU+AFC parliamentarians are taking up posts that have been allocated in an unconstitutional and unlawful way.

In his ruling, Chang declared that Felix and Scott are elected members of the National Assembly, and that despite their status of elected members of the National Assembly, they do not hold seats and cannot sit in the National Assembly, since their names were not among those extracted from the APNU + AFC list of candidates to hold seats on behalf of the persons named in that successful list.

Additionally, Chang said that Article 105 of the Constitution has no application to elected members of the National Assembly; viz: persons whose names were on a successful list of candidates. He said that despite their appointment by the President to be executive Ministers of the Government, such an executive appointment does not entitle Scott and Felix to hold seats or sit as members of the National Assembly.

Representation of the People’s Act

Williams, however, argues that the learned Chief Justice did not address his mind to section 98 of the Representation of the People’s Act. This was made pursuant to the provisions of Article 160 (3) (a) (v) which says that parliament may make provision for the extraction from the list and the declaration of names of candidates who have been elected. Williams explained that this is provided in the Constitution, and it is from this document that the Parliament then subsequently makes provision in the Representation of the Peoples Act Cap 1:03.

Section 98 says, inter alia, that when seats have been allocated to any list of candidates, the representatives or deputy representatives of such list shall extract from the said list as many names belonging to candidates selected by him for the purpose as can be so extracted, without their number exceeding the number of seats allocated to that list.

“Further, if the representatives of the list could only extract names not exceeding the 33 seats that we have, how could it be said that the other members of the list are elected members?” Minister Williams questioned. Therefore, after those names are extracted they now have to be sent to the Chief Election Officer, who shall declare them in the order of extraction to be the names of candidates. So, in other words, you cannot have an elected member of any list until their names are extracted by the representative of the list and the Chief Election Officer declares those names in the order of the extraction to be names of the candidates on such list.

“It is fallacious to say that, as you’re now saying, that as a result of every member of the list being elected, the President could not properly appoint Mr. Scott and Felix from being names on that list,” Minister Williams said.

Morian’s motion
Morian’s motion was premised on the grounds that Articles 60, 103, 105, 160 and 232 of the Constitution of the Cooperative Republic of Guyana, Chapter 1:01, conjointly set out the qualifications of persons who are elected and non-elected members of the National Assembly, voting and non-voting members of the National Assembly; that having regard to the clear language and the intendment of Articles 60, 103, 105, 160 and 232 of the Constitution of Guyana, the said Winston Gordon Felix and Keith Winston Harold Scott are not lawful members of, and cannot sit in, the National Assembly of the 11th Parliament of Guyana.

In an earlier comment, Clerk of the National Assembly, Sherlock Isaacs, had said that the PPP/C’s position and interpretation of the law was incorrect.
Political matter

Williams, in describing Chang’s ruling as controversial, said: “The ruling in this matter signifies a dot on the administration of justice in this country…we are going to take whatever recourse we consider necessary in this matter. What would impel him to do that? I find it unusual, and it’s something we will address further,” Williams said.

Among the options that can be pursued are to appeal the decision and file a stay of execution. Williams said, too, that during the trial, Nandlall was given an opportunity to make substantive arguments in the matter despite objections from him. “I had appealed to the Chief Justice to just limit ourselves as he had no jurisdiction to proceed to hear the matter because it was not by way of an election petition,”
Minister Williams explained.

Williams said the Chief Justice would have committed to hearing the entire matter before making his ruling, and he undertook to communicate by way of notice when the Attorney General would present his substantive arguments on the case.

“However, the Chief Justice failed to communicate, thereby denying the Attorney General the opportunity to present his substantive arguments. As a result, the Attorney General was not given an opportunity to respond to submissions made by attorney for the petitioner, Mr. Nandlall,” Williams complained.

“I was informed today (Friday) that the matter was for decision at 1pm. I’m very surprised that the learned Chief Justice would purport to proceed to give a decision without hearing from me,” Minister Williams contended.