THE Court of Appeal will rule next week on whether the appointment of Justice (Ret’d) James Patterson as Chairman of the Guyana Elections Commission was constitutional. The decision will be handed down approximately one month ahead of the planned Local Government Elections.

Last June, the Chief Justice (ag) Roxane George-Wiltshire upheld President David Granger’s appointment of Justice (Ret’d) Patterson as Chairman of GECOM; however, the decision was appealed by People’s Progressive Party (PPP) Executive Secretary, Mustapha Zulfikar.
After two days of hearing arguments by Senior Counsel and Attorney General Basil Williams and his battery of lawyers, who are representing the interest of the state; and former Attorney General Anil Nandlall, who appeared on behalf of Mustapha, Chancellor of the Judiciary (ag), Justice Yonnette Cummings-Edwards, on Friday announced that the Appeal Court will hand down its decision next week.

The matter was heard Thursday and Friday before the acting chancellor, and Justices Dawn Gregory and Justice Rishi Persaud. On Thursday, Barbadian Queen’s Counsel Ralph Thorne, in responding to written submissions made by Nandlall that the decision by the chief justice (ag) is seriously flawed, argued that it was the former attorney general who has put forward a flawed argument. “The question of acceptability under the constitution is no concern of the leader of the opposition. Under the constitution, the role of the leader of the opposition is to submit a list; that is his role under the constitution,” Thorne told the court, as he alluded to Article 161 (2) of the constitution.

That article states: “…the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth; or a court having jurisdiction in appeals from any such court, or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the leader of the opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly.

“Provided that if the leader of the opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth; or a Court having jurisdiction in appeals from any such Court, or who is qualified to be appointed as any such judge.”

Thorne argued that there is nothing in the Constitution that mandates the President to appoint one of the six persons provided in the list submitted by the Opposition Leader as he rubbished the Nandlall’s position that the proviso could only be activated if a list not provided.

“If the President finds that none of those persons is acceptable to him he may reject. He may exercise the discretion to reject,” the Barbadian Queen’s Counsel said.
He told the court too that under the constitution, there is only provision for a single list to be submitted by the opposition leader by the President. He said the decision to submit an additional two lists can be deemed as “extra-constitutional.”

The attorney general’s team also comprised Solicitor-General Kim Kyte-Thomas and Barbadian Queen’s Counsel, Hal Gollop.

As arguments continued on Friday, Nandlall argued that the provision of the six names by the leader of the opposition forms a critical part of the provisions within Article 161 (2).
“The President is not entitled to 100 choices, he is entitled to six, and he cannot randomly pick six; that six must come from a list emanating from the leader of the opposition. And the leader of the opposition also has limitations: he cannot put Tom, Jane and Harrilall on that list. He must put persons who are qualified to be judges or any other fit and proper person; and he is to determine where they are fit and proper, because he has to find them,” Nandlall argued.

He contended that Article 161 (2) is crafted the way it is to enable the President and oposition leader to arrive at a consensus which would produce a candidate that would enjoy the confidence of both sides.

The former attorney general maintained that the proviso could only be activated if the opposition leader had failed to furnish the President with a list, or had submitted a list that is manifestly absurd that amounts to nothing. Dubbing it the “magic formula,” he argued that the records would show that formula as outlined in the article has worked.
“It worked and it produced Collins, it produced Hopkinson, it produced Doodnauth Singh, it produced Joe Singh, it produced Surujbally. All in a one-off process…one list was submitted, appointment made from that list,” Nandlall pointed out to the court.

Turning his attention to the issue of “reason” arising out of the arguments, Nandlall argued that the President did not give reasons for rejecting the third list submitted by the opposition leader, noting it is only logical to do so.

The chief justice (ag), in handing down her decision last June, said: “I hold that there is nothing before this court to permit a finding that the President acted unlawfully or irrationally in resorting to the proviso to article 161 (2) [of the constitution]; or to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM.”