ATTORNEY General (AG) Basil Williams, SC, on Wednesday argued that an appeal of the High Court ruling on the validity of the appointment of Chairman of the Guyana Elections Commission (GECOM) Justice (ret’d) James Patterson amounts to the questioning of validity of upcoming elections.

Williams was at the time responding to oral submissions presented by Anil Nandlall, attorney representing Executive Secretary of the People’s Progressive Party (PPP), Zulfikar Mustapha. Nandlall before the full court argued that an appeal should be heard and determined expeditiously in the public interest and also to facilitate a last-resort appeal to the Caribbean Court of Justice (CCJ), the country’s final appellate court. The case is before Chancellor of the Judiciary (ag), Yonette Cummings-Edwards and Justices, Dawn Gregory and Rishi Persaud.

Back in June, Chief Justice (ag) Roxane George-Wiltshire ruled that the appointment of Justice Patterson was constitutionally done by President David Granger. The state represented by Williams, SC. Deputy Solicitor-General Beverly Bishop-Cheddi and State Counsel Coleen Liverpool argued that since November 12, 2018, has been identified for the hosting of Local Government Elections (LGE), the application filed by Nandlall amounts to a challenge to the validity of the elections.

Williams, SC, noted that there are myriads of cases which support his arguments. He submitted that if there is a challenge to the validity of an election, then it has to be done via an elections petition subsequent to the holding of elections.
“If you are challenging the decision of the appointment of the chair of GECOM and you are saying that it is a life-and-death issue —you are challenging the validity of the appointment and if it is a life-and-death issue that it be heard before the holding of the November 12 elections, is tantamount to saying we cannot have a valid elections,” declared the attorney general.

Given the state’s position, Williams requested an opportunity to present to the court cases in support of his submissions. “We cannot have a valid election with Justice Patterson as chair and so he is challenging his appointment because his appointment would lead to invalid elections,” Williams stressed.

However, with the LGE’s date already named and General and Regional Elections slated to be held no later than August 2020, Nandlall argued that the matter must be heard expeditiously, even as he stressed that Justice George-Wiltshire erred and misdirected herself in law in construing Article 161 (2) of the Constitution of Guyana by failing to give effect to the intentions of the framers of the said article.

“It is of paramount public importance and I can’t over emphasise those words, that the issues which the appeal raises be resolved conclusively before those elections,” he said, noting that the matter must be heard and determined in a timely fashion to ensure that there is room for an appeal to the CCJ.

“We must recognise realistically the virtual certainty of that resort and therefore your honour it is imperative that we hear the matter in such a timeframe that would allow the ultimate and complete disposal of the issue within the legal system of Guyana. This appeal, I respectfully submit, ought to be heard so early so as to permit any challenge of its decision to be completed before the CCJ before the elections,” Nandlall stressed.
Nandlall referenced the CCJ ruling in May, in the case of the St. Lucian Professor Eddy Ventose being allowed to register to vote in Barbados. In that case, Professor Ventose, a St. Lucian national residing in Barbados for more than three years, was prevented from being registered by the Chief Electoral Officer to vote. The professor had satisfied the requirements of Section 7 of ROPA so as to be qualified to be registered as an elector for a constituency. That matter was heard and determined expeditiously, given that Barbados was heading into elections.

“The entire matter was heard within a few weeks, the CCJ sat on a Sunday and heard and determined the matter,” Nandlall stated, while noting that “the court didn’t sit with the matter and allow the entire litigation process or legal process to be futile, but rather heard the matter.”

As such, he called on the Court of Appeal, to “emulate” such an approach in this case. He noted that he can obtain all necessary records that were filed in the High Court and those consist of applications, submissions and exhibits.

“The facts of the matter are absolutely undisputed; the case simply involves the interpretation of a paragraph in our constitution or an article in our constitution that is less than a quarter of this page. The appeal will turn on the interpretation of a singular provision of the constitution of Guyana- Article 162,” he stated.

He said that the submissions made in the High Court were “copious” and as such not much would have to be added by himself or the state, but for “a few commentaries on the chief justice’s ruling”. Nandlall also referenced the ruling in the Gaskin case, which also dealt with the interpretation of the Constitution of Guyana.

“The chief justice articulated much of these issues and wrote copiously on them, but in these proceedings it is my respectful contention your honour fell into error. So I am saying all of that simply to articulate before the court and put on the record that there is absolutely no good reason why this appeal should not be fixed early. There are a million reasons why it should be fixed early– preparation of the record of appeal can be done in a matter of hours, the issues involved do not require any review of evidence other than what is contained in the affidavits, and it is all questions of law paramount to our democracy for the peace, order and good governance of the country,” argued Nandlall, as he called for a date to be fixed urgently for the hearing of the appeal.

The burden on you
Nandlall stressed that the AG, whose affidavit in answer was filed only on Tuesday, a month and a half after the Notice of Appeal was filed, ought to care for a speedy hearing and determination of the case. But Williams noted that the burden is on the applicant to show that he has an arguable case. “We don’t believe there is any urgency and the applicant is not prejudiced in this matter,” the AG said, while noting that he does not believe “the case would go beyond submissions.” The state in its affidavit in answer, argued that Mustapha has not established that he has an arguable appeal and that Justice George-Wiltshire erred in exercising her discretion to refuse orders sought in the lower court.

The state stressed that President Granger 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. That he said, is indicative of the monies expended by GECOM. It was also contended that the court with scarce resources is burdened with a number of appeals and as such, it is incumbent on the appellant to establish that the appeal has reasonable prospect of success and exceptional circumstances to cause the court to exercise its discretion to abridge the time in his favour. The state argued too that Mustapha must establish urgency to warrant a grant of his application for the matter to be heard before other appeals which are first in time. The Affidavit in Answer also states that in the circumstances, “the application is absurd, misconceived, void of merit and ought to be dismissed with substantial costs. The case has been adjourned to July 27 to allow the AG to amend his affidavit in answer which would then be served.