…AG warns, if GECOM chair appointment is overturned

ATTORNEY General and Legal Affairs Minister, Basil Williams on Thursday argued that the Court of Appeal has no jurisdiction, sitting as it is, to hear the appeal against the ruling of Chief Justice (ag), Roxane George-Wiltshire which upholds the appointment of Chairman of the Guyana Elections Commission (GECOM), Justice (Ret’d) James Patterson, now that the case has become an elections matter.

In presenting preliminary arguments in the Court of Appeal before acting Chancellor of the Judiciary, Justice Yonnette Cummings-Edwards; Justice Dawn Gregory; and Justice Rishi Persaud, Williams argued that the case, Zulfikar–V–AG, became an elections matter when the Minister of Communities, Ronald Bulkan, by way of a publication in the official gazette, set November 12, 2018 as the date for Local Government Elections.

He noted that while the elections would culminate on November 12, 2018, the electoral procedures have commenced, and as such, matters pertaining to those elections could only be brought by an election petition before an election court.

In setting the foundation for his arguments, the attorney general pointed out that when the chief justice heard the case – Zulfikar-V-State – which brought into question the decision of President David Granger to appoint Justice (Ret’d) Patterson Chairman of GECOM, the country was not in the process of an election. A decision on that matter was handed down on June 8, 2018.

He said the official announcement of Local Government Elections in July, 2018, has operationalised the electoral process, noting that these procedures such as voters’ registration are being done under the chairmanship of Justice (Ret’d) Patterson, whose appointment is being challenged on the basis of constitutionality and legality.

“That challenge, your honour, really questions whether councilors can be validly elected on November 12, 2018 at Local Government Elections under the chairmanship, administrative conduct, of Justice James Patterson,” he said while maintaining that it is an elections matter.

The attorney general said, were the Court to ignore that the country is in elections mode, accept jurisdiction, hears the matter, and ruled that the Justice (Ret’d) Patterson’s appointment as Chairman of GECOM was unconstitutional, it would have a catastrophic effect on the upcoming Local Government Elections. According to him, the Chairman of GECOM is the engine of GECOM, and by extension the Local Government Elections.

Noting that millions of dollars have already been spent to facilitate the elections, Williams asked the Appellate Court to hold its hands in the matter. In his arguments he maintained that the validity of the appointment of Justice (Ret’d) Patterson as Chairman of GECOM cannot be challenged until after the Local Government Elections are held and the results declared as he pointed to the case Seecomarsingh Singh v Butler (1973).

Building his case further the attorney general pointed to N P Ponnuswami v Returning Officer (1952). “The appeal was dismissed on the basis that statute required that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court,” he said while quoting from 1952 SCR page 223.

He said in Guyana, Article 78 of Cap 1:01 empowers Parliament to make provision for the election of members of Local Democratic Organs including municipalities and Neighbourhood Democratic Councils (NDCs). He added Parliament made such provision by the enactment of the Local Authorities Act Cap 28:03, and noting that Section 146 Local Authorities (Elections) Act makes provisions for the challenge of the validity of the election of a councilor to be made in the High Court by way of an election petition.

“It is further submitted that it is a matter of first importance that elections should be concluded as early as possible according to time schedule, and all controversial matters and all disputes arising out of the elections should be postponed till after the elections are over so that the elections proceedings may not be unduly retarded protracted,” the attorney general told the appellate court.

For Guyana, Local Government Elections is critical to local governance, Williams argued, noting that the functionality of municipalities and NDCs can be severely affected if elections are not held. The Attorney General was accompanied by the Solicitor General, Kim Kyte; Barbadian Queens Counsel, Hal Gallop and Ralph Thorne, and Principal Legal Advisor, Tiffany Castello.

In his opening argument, Nandlall spoke hypothetically as he made his case. “If, God forbids, the Chairman of GECOM commits murder, then he cannot be charged, placed before a court and tried until elections takes place, and it can only be done by way of an election petition. I think that graphically explains the rational of what the attorney general is saying. It only has to be stated to be rejected,” Nandlall told the court.

He rejected the position put forward by the attorney general that the case Zulfikar-V-AG is an elections matter. In building his case, Nandlall pointed the court to the case involving Professor Ventose in Barbados which was determined by the Caribbean Court of Justice (CCJ). “In that case, Ventose filed Judicial Review proceedings challenging aspects of the electoral process which prevented the registration of his name on the list of electors, and I detailed how expeditious the court in Barbados and the Caribbean Court of Justice disposed of the matter…before elections day, not to wait until elections, and use an elections petition,” Nandlall explained.

He stated that the case, in question, challenges the constitutionality of the appointment of the Chairman of GECOM, which any citizen has the right to do at any time. “I know of no principle which suspends a citizen’s right to challenge a constitutional violation until the expiration of an event…I know of no principle which suspends the provisions of the Court of Appeal Act, I know of no such principle. I don’t know how the common law principle or a principle contains in a case can suspend the jurisdiction of this court confer upon it by Parliament to hear an appeal,” Nandlall told the Appellate Court.

He also disagreed with the attorney general on the position that GECOM’s Chairman is the engine of elections, noting that it is the Chief Elections Officer (CEO) who runs off local, regional and national elections in the country. The Chancellor, upon hearing the arguments put forward by Williams and Nandlall, indicated that the appellate court would hear arguments for the substantive case, and during which, will make a determination on the issue of jurisdiction of the court.