By Svetlana Marshal
THE Court of Appeal, on Thursday, upheld the 2016 decision of the High Court that it was unlawful for Minister of Citizenship, Winston Felix and Minister of Labour, Keith Scott to sit in the National Assembly as technocrats – non-elected members.

The ruling was handed down by a panel of three judges – Justices of Appeal Dawn Gregory and Rishi Persaud and High Court Judge, Justice Franklin Holder. Chancellor of the Judiciary (ag), Justice Yonette Cummings-Edwards had recused herself from the case in 2019.
On February 19, 2016, Justice Ian Chang had ruled that the A Partnership for National Unity + Alliance For Change (APNU+AFC) ministers could not sit in the National Assembly as non-elected members on the grounds that they were both elected as part of the Coalition’s List of National Candidates but did not form part of the list of 33 for the occupation of seats in the National Assembly.

Chang, in his ruling, had 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.

On Thursday, in handing down the ruling of the Appellate Court, Justice Gregory said while the Attorney General and Minister of Legal Affairs, Basil Williams, challenged the High Court’s decision on the substantive matter, and the jurisdiction of the High Court to hear the matter, his arguments focused primarily on the issue of jurisdiction. Through the Solicitor General Nigel Hawke, the Attorney General had argued that the High Court had no jurisdiction to hear the matter because it should have been brought by way of an Elections Petition and not a Notice of Motion. .

“The arguments were directed only to the issue of the jurisdiction of the High Court to entertain the Constitutional motion, given the nature of the order sought,” Justice Gregory said.

UPHELD
Based on the focus of the arguments put before the court by the Attorney General, the Appellate Judge upheld the decision of Justice Chang. “… In light of the broad substantive issues which were raised in the grounds of appeal but which were not argued, I would uphold the findings of the Chief Justice on those substantive issues as contained in his judgment,” Justice Gregory ruled.

In addressing the issue of jurisdiction, the Appellate Judge alluded to Articles 64 and 163 of the Constitution. Article 64 states: “All questions as to membership of the National Assembly shall be determined by the High Court in accordance with the provisions of Article 163.” Meanwhile, Article 163 outlines the circumstances under which the High Court shall have exclusive jurisdiction over, such as any question “regarding the qualification of any person to be elected as a member of the National Assembly” or the filling of a vacant seat in the Assembly.

It was noted that Validity of Elections Act provides for an Elections Petition to be brought before the High Court to treat with the categories of issues highlighted in Article 163.
“The challenge to their appointment is not a challenge to qualification of membership as specifically provided for in Article 155 (1) of the Constitution,” Justice Gregory said while adding that the challenge does not concern the validity of the conduct of an election or its results that may have been affected by any unlawful act. According to her, there was no need for an Elections Petition because the issue did not fall within the categories outlined in Articles 163 and 155.

Justice Holder put forward similar arguments in handing down his ruling while Justice Persaud endorsed the sentiments expressed by both judges and upheld Justice Chang’s decision.

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.”

Morian was represented by Anil Nandlall and associates. Nandlall was not present on Thursday.