Appellate court to begin hearing gov’t appeal April 30

ON April 30 next, the Court of Appeal is set to commence hearing an appeal filed by the government against a ruling by former Chief Justice Ian Chang, which bars two sitting ministers from functioning in the National Assembly as technocrats.

On February 19, 2016, Justice Chang had ruled that the a Partnership for National Unity (APNU) + Alliance For Change (AFC), ministers could not continue to sit in the National Assembly as non-elected members, since they were both elected as part of the coalition’s list of national candidates.

In an invited comment on Monday, Minister Felix said that he has confidence in the ability of Attorney General Basil Williams’ ability to represent the issue and get a result, which he said is “highly likely to be positive.”

Felix said that it has been and continues to be, before and even after the ruling that was handed down by the former chief justice, to perform his duties to the best of his ability.
Chang had, in his ruling, also noted that despite the appointment to executive positions of Felix and Scott by President David Granger following the 2015 General and Regional Elections, such top positions do not entitle the two gentlemen to hold seats or sit as technocratic ministers in the National Assembly.

The ruling has its origin in an objection by the People’s Progressive Party (PPP) on the appointments of Felix and Scott. The party, through a challenge filed by PPP member Desmond Morian, had contended that, “Articles 103 (3) and 105 of the constitution of Guyana and laws pronouncing on the eligibility of appointment of technocratic ministers, do not confer technocratic status on these persons already sworn in by President David Granger as ministers.”

Representing Morian in the matter is former Attorney General and Minister of Legal Affairs under the PPP administration, Anil Nandlall.

But the government counter challenged the ruling, claiming that the two ministers were properly appointed and that Chang, at the time when he ruled against the counter challenge, was `functus officio,’ meaning he was about to demit office.

According to the AG, Chang’s decision cannot be supported in law and that he “fell into grave error of law and misdirected himself in law, when he found that persons who are on the successful list of candidates are elected and therefore cannot qualify under Article 105 of the constitution of Guyana to be ‘non-elected’ Members of Parliament and who have not been chosen or selected from the list of candidates to be Members of Parliament are excluded from being selected by the President as persons who are qualified to be elected as members of the National Assembly.”

He likened Chang’s decision as bad in law, in that he “failed to take into consideration the provisions of the Representation of the People Act, Chapter 1:03 and the National Assembly (Validity of Elections Act), Chapter 1:04”.

In addition, Williams said that Chang’s ruling is in breach of the rules of natural justice, as he failed to give him a hearing before delivering his decision; also that he, “Failed to take into account that Article 163 (4) (a) of the constitution of Guyana empowered Parliament to make provisions with respect to the circumstances and manner in which and the conditions upon which proceedings for the determination of any question under this article may be instituted in the High Court, which Parliament did by enacting the National Assembly (Validity of Elections) Act, Cap. 1:04,” thus misdirecting himself in law.