…Queen’s Counsel says President acted lawfully to appoint Patterson

BARBADIAN Queen’s Counsel Ralph Thorne has said that People’s Progressive Party Executive Secretary, Zulfikar Mustapha who filed a court action challenging the appointment of Justice James Patterson as chairman of the Guyana Elections Commission has no standing in the matter and that President David Granger acted lawfully in his decision, when he presented oral arguments at the continuation of the case before Chief Justice Roxanne George-Wiltshire on Friday.

Present in court were Attorney General Basil Williams, S.C., another Barbadian Queen’s Counsel Hal Gallop, along with Solicitor-General Kim Kyte and Principal Legal Advisor Judy Stuart, while Mustapha was represented by Manoj Narayan, and Priya Manickchand.

Mustapha in October had moved to the High Court to declare that the appointment of Justice (ret’d) Patterson as GECOM’s chair is unconstitutional and null, void and of no legal effect. Additionally, he has asked the court to grant an order “rescinding, revoking, cancelling and setting aside the appointment” of Patterson and further asked the High Court to choose a person from the 18 nominees submitted to the President by Opposition Leader Bharrat Jagdeo.

Jagdeo submitted six names on three lists, all of which were rejected by President Granger who deemed the nominees unfit for the post. The PPP through its Executive Secretary also contends that Patterson does not have the required qualifications and integrity to be GECOM Chair. Additionally, he contends that President Granger violated the Constitution by “unilaterally” appointing Patterson and not a nominee from the lists provided by Jagdeo.

However, on Friday, Thorne essentially outlined the state’s written submission stressing that the application made by Mustapha lacked merit and ought to be dismissed. He posited that Article 161 (2) of the constitution is not enforceable by the courts, while stressing that the High Court has no constitutional or legal power to conduct an inquiry into the matter. The Queen’s Counsel pointed to the ‘Exclusio’ rule, whereby the Latin Maxim ‘expressio unius est exclusion alterius’ is a rule of statutory interpretation known as the implied rule of exclusion that express mention of a thing is to impliedly exclude all others.

The Barbadian attorney noted that it is Article 163 which provides for the determination of questions as to membership and elections. That Article states that the High Court shall have exclusive jurisdiction to determine questions to matters expressly mentioned therein. Article 163, he said, made no mention of the issue of the appointment of the GECOM chair as a matter that may be subject to the jurisdiction of the High Court.

Thorne submitted that based on the ‘Exclusio’ rule, the court does not have jurisdiction to hear the matter and said that the legal draftsmen did not intend for the appointment of a GECOM chair to be the subject of litigation. The attorney explained that Article 161 (2) creates an executive power in the President to appoint a chairman and he stressed that such function is “the nature of convention,” something not enforceable by a court of law. Quoting writings on Caribbean Constitutional Law, the attorney reminded that conventions are forms of constitutionally moral conduct, practice that has become customary and accepted.

The President’s decision to appoint Justice Patterson was not unilateral, said Thorne, who noted also that the appointment of a GECOM chair is the President’s exclusive right. That aside, the attorney said the matter of the selection of a GECOM chair is exclusive to the President and the leader of the opposition and as such, the leader of the opposition is the only “proper party to sue” though it is the state’s belief that there is no such right.

He noted that by virtue of Article 161, constitutional powers and responsibilities are to be exercised between the President and the opposition leader and so he contends that Mustapha has no standing in the matter. “Why is the leader of the opposition so silent? He ought to have been here,” declared Thorne, who vehemently maintained that Mustapha is not properly speaking as an applicant in keeping with the aforementioned article. “What is his business before this court? He cannot speak…he has no business here,” the attorney added, while stating that the President and the opposition leader are two creatures of the Constitution.

The attorney also in his oral presentation referenced the recent decision of Justice George-Wiltshire in the Marcel Gaskin vs the Attorney General, where the court held that the submission of lists by the opposition leader does not mean that the President is obliged to accept the list or the person’s name therein. Additionally, it was also held that if the President is of the view that the list is deficient, totally or in the names included, he can exercise his discretion to deem the entire list unacceptable.

In the Gaskin case, the applicant was suing as a citizen and elector and as such had a sufficient interest in understanding how the identified office is to be filled and to have the court interpret the law on the matter. But in the application made by Mustapha, the attorney argued that by stating he is a citizen and a registered elector, with emphasis on his post as Executive Secretary of the PPP and being a Member of Parliament, he has elevated his status beyond that of a mere citizen.

“The legal and factual points in this case and the Gaskin case are fundamentally different. Gaskin was an ordinary citizen, he asked for a declaratory judgment. The constitution does not have to recognise the executive secretary of the party,” submitted Thorne, who noted that Mustapha interposes himself into the equation.

He argued that Article 161 (2) creates specific powers and responsibilities exclusively in the President and opposition leaders and that is beyond the capacity of any third party to interpose himself to move to the court. The President he said has the sole power to appoint the GECOM chair, has a duty to receive a list of six persons from the opposition leader and a duty to ensure that the appointee is qualified in keeping with Article 161.
While it is the responsibility of the opposition leader to submit a list of six persons for consideration by the President, and to meaningfully consult with non-governmental political parties in the National Assembly. Moreover, Thorne said the President is not bound to appoint a chairman from the list of persons submitted by Jagdeo and may also exercise his discretion to reject the entire list and act on his own judgment to appoint a person not named on the list submitted by the opposition leader.

In consideration of what is meant by the phrase “not unacceptable”, the Queen’s Counsel rebutted Mustapha’s contention that not unacceptable falls somewhere between acceptable and unacceptable and as such a person can be unacceptable, but still not unacceptable and be fit and proper.

“There is no mystery…the double negative is a literary device known as litotes which forms an understatement, always deliberate with the intention of emphasis,” said the attorney, who posited that as a draftsman’s device, it gives emphasis to the power in relation to acceptance.

He said too that the President has much freedom to exercise his mind on the question of acceptability. Attorney Thorne made it clear that it is an established principle of English Public Law that the discretion of a public functionary cannot be fettered unless he acts illegally, irrationally or with procedural impropriety. He told the court that there is also the concurrent principle of law that a public functionary cannot fetter his discretion; to fetter one’s discretion is deemed an abuse of discretion.

In summing up, Thorne argued that President Granger in making the appointment as he did, in consideration of delay and the public’s interest, acted reasonably and legally in the performance of his duty vested in him by Article 161 (2) of the Constitution.
Supporting Thorne, Attorney Gallop, Q.C., spoke to the issue of the right to give reasons. Mustapha in his application said the President in rejecting the lists of nominees, failed to give reason for deeming the nominees unacceptable. According to Gallop, the President provided a number of reasons to the opposition leader. In fact, he said by virtue of his rejection of the lists, in keeping with constitutional requirements, that in and of itself was a reason.

“That is a reason, one cannot say a reason was not given…the President gave a number of reasons for his decision.” He told the court that the President cited further delays in the appointment of a GECOM Chair, inimical to the public interest, the powers of Article 182 (1) which speaks to the immunities of the President, Article 161 (2), and the ruling in the Marcel Gaskin case. “…those are reasons…based on the discretion conferred upon him…the applicant may not like them… [But] reasons were given,” said Gallop Q.C. He argued too that the President’s action was not capricious and he called on the court to reject outright the application by Mustapha.

EACH CITIZEN HAS A RIGHT

Meanwhile, Mustapha’s attorney, Manoj Narayan said that the AG’s claim that the matter of a selection of GECOM chair is exclusive to the President and the opposition leader is misconceived.
“The article gives power to both the President and opposition leader to arrive at a suitable candidate…the matter concerns each and every citizen,” he said, stressing that the right to vote is a constitutional right, while noting that anyone who has that right can bring an action before the court.

“It does not have to be the leader of the opposition…Mustapha acted in his personal capacity and the evidence is not hearsay evidence…he is not acting on behalf of the opposition leader,” Narayan said, while positing that it is the duty of the High Court to ensure that the constitution is upheld at all times.

“The court does not need a provision in the constitution to say so,” he added. Turning his attention to Article 182 which speaks to the immunities of the President, the attorney said, the very article “does not mean the actions of the President are not reviewable.”

He added that Guyana has undergone a process of constitutional reform and has moved away from the position where the president has sole discretion to one where he has shared discretion. “The interpretation advanced by the respondent speaks of the President’s discretion…they are asking this court to say this Article (Article 161) is nothing but a farce…it cannot be interpreted to create absurdity,” he said, while stressing that “the President is not vested with discretion under Article 161…he has the power of review but no discretion.”
It was then that Justice George questioned, “Who decides the list is reasonable?”

But in timely rebuttal, Queen’s Counsel Thorne said Narayan “undermined his entire case by saying the President has no discretion [in relation to the choice of chairman] but to review.” He said that by the use of the word review, Narayan is suggesting that the President is obligated to merely relook at the list submitted. “That flies in the face of the constitution…what he is saying is that the leader of the opposition has the power to appoint. That is not the Law!” he declared. At the conclusion of the hearing, Thorne told reporters that Narayan’s argument is heavily flawed.

“What he is telling the court and the public is that the names submitted by the leader of the opposition, is that the President only has the power to review those names, but that he doesn’t have a choice, he must take one of them. Now that is constitutionally and legally flawed, because it means the choice is given to the leader of the opposition. It cannot be right.”
He posited that the appointment of the head of state is not to be trifled with statements like that to say that the head of state is fettered in his powers to appoint. “That cannot be the state of the law!” he asserted. At the conclusion of the hearing, Justice George-Wiltshire indicated that notices will be dispatched to the parties indicating when she will deliver her ruling on the matter.