DAYS after Chief Justice (ag) Roxane George-Wiltshire ruled that President David Granger acted constitutionally when he appointed Justice (ret’d) James Patterson as Chairman of the Guyana Elections Commission (GECOM), People’s Progressive Party (PPP) Executive Secretary Zulficar Mustapha has filed an appeal calling for the decision to be quashed and that President Granger be instructed to select a Chairman from the 18 nominees put forward by Opposition Leader Bharrat Jagdeo.

In the Notice of Appeal filed by Attorney Anil Nandlall and a battery of lawyers on Monday, Mustapha contends that Justice George-Wiltshire erred and misdirected herself in law in construing Article 161 (2) of the Constitution of the Cooperative Republic of Guyana by failing to give effect to the intentions of the framers of the said article.

The Chief Justice handed down her decision last Friday. “The learned hearing judge erred and misdirected herself in law by failing to impugn the appointment of Mr. Justice James Patterson as Chairman of GECOM, after Her Honour ruled that reasons are required to be provided by the President for the rejection of the list submitted by the Leader of the Opposition pursuant to Article 161 (2) of the Constitution and after having ruled that the President provided no such reasons,” the Notice of Appeal stated.

According to the applicant, the Chief Justice failed to apply or failed to properly apply the purposive canon of interpretation in construing Article 161 (2) of the Constitution of the Cooperative Republic of Guyana. “The Learned Hearing Judge erred and misdirected herself in law when her Honour misconstrued and misinterpreted the role of the Leader of the Opposition in Article 161 (2) of the Constitution of the Cooperative Republic of Guyana in so far as Her Honour’s interpretation or misinterpretation has reduced the role of the Leader of the Opposition to being merely perfunctory,” the appeal states.

Justice George-Wiltshire in her ruling 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. As such, the request by Mustapha for a declaration that the appointment of Justice Patterson is null, void and of no effect was refused.

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 Leader of the Opposition. “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.

However, Mustapha argues that the Chief Justice misdirected herself in law by omitting to review, or properly review the exercise of the power and discretion which Article 161 (2) resides with the President, in rejecting three sets of names submitted to him by Jagdeo pursuant to the said Article in order to determine whether the President exercised that power and discretion lawfully and reasonably and not irrationally, capriciously, whimsically and influenced by irrelevant and extraneous considerations and not guided by relevant considerations. He contends too that Justice George-Wiltshire erred when she ruled that the President has the power to reject a list of six names submitted by the Leader of the Opposition pursuant to Article 161 (2) of the Constitution.

Moreover, he believes that the judge also erred and misdirected herself in law when she failed to pronounce on whether the President has the power to request more than one list of six names from the Opposition Leader, pursuant to Article 161 (2) of the constitution. Mustapha said too that the Chief Justice erred when she failed to take into account the first and second lists of names submitted by Jagdeo upon the request of the President.
“The Learned Hearing Judge erred and misdirected herself in law by finding that the President of the Cooperative Republic of Guyana is empowered to reject the list as unacceptable although one or more persons on that list is or are acceptable to the President.”

He said too that the decision by Justice George-Wiltshire is “wrong, misconceived and erroneous in law as it has destroyed a delicate but fundamental balance in the composition of the Guyana Elections Commission which the framers of the Constitution intended to repose in a Chairman appointed by a formula captured in Article 161 (2) of the Constitution.”

Additionally, Mustapha through his attorney said that Justice George-Wiltshire’s decision is wrong, misconceived and erroneous in law “as it allows the President of the Cooperative Republic of Guyana to reject a list of names submitted to him by the Leader of the Opposition, pursuant to Article 161 (2) of the Constitution and make a unilateral appointment of a person of his own choosing.”

He posited that the Chief Justice erred and misdirected herself in law when she ruled that the President lawfully and properly invoked the proviso to Article 161 (2) of the Constitution, and when she failed to correctly interpret the circumstances when the proviso to the aforementioned article can be activated.