… AG wants court to dismiss PPP GECOM chair challenge

Attorney General (AG) and Minister of Legal Affairs Basil Williams S.C. has called on the High Court to dismiss the application of PPP Executive Secretary Zulfikar Mustapha who has requested the court to quash the appointment of Justice James Patterson as Chairman of the Guyana Elections Commission (GECOM).

The AG in his Affidavit of Response to the PPP High Court action said the application filed by Mustapha is “irrelevant, speculative, malicious, frivolous and vexatious”.
In his response dated November 10, 2017, the AG contends that President David Granger did not act unconstitutionally in his appointment of Justice Patterson and noted that he was not obligated to select a person from the three lists provided by Opposition Leader and former President Bharrat Jagdeo.

Jagdeo had submitted to the President three lists comprising six nominees each for the post following consultations with civil society.
President David Granger rejected all three of the lists on the grounds that the nominees were not deemed fit and proper.

The last, which comprised of former advisor to the president Major General (ret’d) Joseph Singh, Attorneys Teni Housty, and Sanjeev Datadin, Annette Arjune- Martins, Pastor Onesi La Fleur and former magistrate Krishnadatt Persaud, was submitted sometime in August.
The President’s rejection of the third list sparked much controversy as the PPP contends that Justice Patterson is biased and was more or less hand-picked.

Government has since made it clear that Justice Patterson was selected purely on his credentials and is not affiliated with the coalition government.
The President had informed the Opposition Leader that the last list too was unacceptable considering Article 161 (2) of the Constitution and the judgement of Chief Justice Roxanne George-Wiltshire in the matter of an application made by Marcel Gaskin.

“The President told the Leader of the Opposition that having rejected the third list as unacceptable he would act in the manner set out in his said letter to have resort to the proviso in Article 161 (2) which permits the President to act independently to appoint a person of the judicial category to be chairman of the GECOM, that is a person who is presumptively fit and proper.”

In fact, the High Court action filed by PPP Executive Secretary, Zulfikar Mustapha contends that the President’s exercise of his discretion and his decision to appoint Justice Patterson is unreasonable, arbitrary, capricious, procedurally improper, unconstitutional, and

influenced by improper motives and was made in bad faith.

Notwithstanding the PPP’s belief, the AG in his defence said the President acted within the Constitution to resort to the proviso in accordance with Article 161 (2) of the Constitution when selecting Justice Patterson.

He contended that Justice Patterson is a suitable person in the judicial category of persons that are presumptively fit and proper in accordance with Article 161 (2) of the Constitution.
According to the AG, Jagdeo had failed to submit any curricula vitae of the listed persons and was requested by the President to remedy the omission; the Opposition Leader complied.

ACTED CONSTITUTIONALLY
“I will contend that His Excellency, the President acted constitutionally, 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,” said Williams in his affidavit of defence.

He said too that the President 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 nor is there any 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 the Opposition Leader with the criteria to qualify for GECOM chair.

The AG deemed Mustapha’s application “absurd, misconceived and void of legal reasoning and merit” and called for it to be dismissed with substantial costs since the President cannot be directed to choose a person from the lists of 18 which is specifically rejected.
“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 powers of the executive arm of government by the judiciary who cannot govern.”

Additionally, the AG posited that the immunities of the President are enshrined in the Constitution in Article 182 (1) and it directs that the President shall not be personally answerable to any court for the performance of the functions of his or her own office or for any act done in performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him or her, in his or her personal capacity in respect thereof either during his or her term of office or thereafter.

“I am advised by my attorneys-at-law and do verily believe that under Article 111 (1) of the Constitution of Guyana, His Excellency the President in the exercise of his functions under the Constitution or any other law, shall act in accordance with his own deliberate judgement except in cases where, by this Constitution or by any other law, he or she is required to act in accordance with the advice or on recommendation of any person or authority.”

Further, Williams contended that the President is not required under the proviso of Article 161(2) of the Constitution, to consult, consider and account to the Leader of the Opposition in the exercise of his own independent and deliberate judgement.

UNFOUNDED
The AG submitted that Mustapha’s application is unfounded and mischievous and for the most part is an outright falsehood.

As it relates to Justice Patterson’s credentials, and his curricula vitae stating that he was Chief Justice of Grenada as opposed to acting Chief Justice, the Affidavit of Defence said, “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 execute the functions of the office.”

Williams argued that during Justice Patterson’s tenure, after and even now, he is called “Chief”, “Chief Justice” or “My Lord” as is a common practice in such offices. Several exhibits from the Grenada Newsletter and Barbados Advocate were submitted as exhibits to verify Justice Patterson’s role in Grenada.

It was also noted that the curriculum vitae of Justice Patterson was submitted to President David Granger before he (Patterson) was appointed to the Advisory Committee on Prerogative of Mercy and to head the Commission of Inquiry into the Prison Jail break of July 2017 and long before he was appointed GECOM chair.

“I contend that the Honourable Justice Patterson is a fit and proper person to be appointed as chairman of GECOM within the ambit of the Constitution. I further contend that the Honourable Justice Patterson is a learned jurist with over 53 years at the bar and has served the Judiciary in excess of 12 years which further qualifies him to be appointed as chairman of GECOM within the parameters of Article 161 (2) of the Constitution of Guyana.”