SUBSEQUENT to a ruling by Chief Justice (ag) Roxane George in the Demerara High Court on Tuesday that the appointment of Sarah Brown and Vikash Ramkissoon as Parliamentary Secretaries is unlawful, Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C, has filed an appeal against it.
In the matter, Opposition Chief Whip, Christopher Jones filed a Fixed-Date Application challenging the legality of the appointment of Sarah Brown and Vikash Ramkissoon, Parliamentary Secretaries of the Ministry of Amerindian Affairs and the Ministry of Agriculture, respectively, as members of the National Assembly.
Jones is contending that Brown and Ramkissoon cannot be appointed as non-elected Members of Parliament (MPs), since they were named on the People’s Progressive Party/Civic (PPP/C)’s List of Candidates for the March 2, 2020 General and Regional Elections.
Subsequent to the PPP/C being allocated the majority of 32 seats in the National Assembly, based on the number of votes cast in their favour, Brown and Ramkissoon were not extracted from the list of candidates to become members of the National Assembly.
They were appointed Members of the Twelfth Parliament of Guyana on September 15, 2020 by virtue of Article 186 of the Constitution, which provides that Parliamentary Secretaries may be appointed from among persons who are elected members of the National Assembly, or are qualified to be elected as such members.
Jones, through his attorney-at-law Roysdale Forde, S.C, relied heavily on the decision in Desmond Morian v Attorney-General et anor, in which Nandlall had successfully argued that then Minister within the Ministry of Social Protection, Keith Scott, and Minister of Citizenship Winston Felix were unlawful members of the National Assembly.
The Attorney-General, in his written submissions to the court, argued that based on the language used by the framers of Article 186 (1) and 186 (3) of the Constitution, it is pellucid that Parliamentary Secretaries can come from among persons who are elected; that is, extracted from the list of candidates put up by a political party for elections, as well as persons who are qualified to have been so elected.
Further, he had submitted that there is no reasoned judgement that dealt with the merits of the Morian case, and because only a procedural point was argued before the Court of Appeal in that matter, the High Court is permitted to disagree with the decision in Morian, and was not bound by the decision of the Court of Appeal.
The Chief Justice rejected this argument, based on the Doctrine of Precedent which mandates that lower courts are bound by those courts higher in the hierarchy, even when they do not agree with the higher courts. “It is not for this court to decide, because the Court of Appeal did not give reasons for upholding the decision of Chief Justice Chang in Morian, or that the merits of the case were not argued in the Court of Appeal, that this court can therefore hold that the decision is therefore wrong, and decline to follow. The lack of reasons would be similar to giving reasons that are not accepted to be correct,” Chief Justice George said. Attorney-at-law Manoj Narayan, representing the Speaker of the National Assembly in the matter, and the Attorney-General had also argued that the decision in Morian is irrelevant to this matter, since it deals with the appointment of Ministers and not Parliamentary Secretaries, two substantially unique positions. However, the Chief Justice rejected this argument, noting that it is without merit.
In addressing the issue of whether having been elected through their names being on the list of candidates, Brown and Ramkissoon can, in effect, also hold positions as persons who are qualified to be elected, that is, as non-elected members by being Parliamentary Secretaries, the Chief Justice disagreed.
“This is to say that can the third [Brown] and fourth [Ramkissoon] respondents be members of the National Assembly, despite being elected non-extracted members, I think not,” the Chief Justice held in her ruling.
She noted that in her view, the issue in the matter does not pertain to holding seats in the National Assembly, but rather surrounds strictly membership of the National Assembly, which the case of Morian deals with, and it is also factually similar to the case at hand.
As Chief Justice George was at pains to explain, a member of the National Assembly who cannot vote is, by that very fact, a non-elected member, and can only have a seat or be a member by virtue of his or her appointment as a technocratic minister, or as a parliamentary secretary, while an elected member becomes a member by being extracted from the list of candidates.
In the circumstances, she ruled that seeing that Brown and Ramkissoon were not extracted from the list of candidates, they cannot become members of the National Assembly, other than by being appointed as non-elected Ministers, or Parliamentary Secretaries, and they cannot be elected and non-elected members at the same time.
“The end result is that the facts of this case, as in Morian, the third and fourth respondents are now both elected and non-elected members of the National Assembly, and this cannot be. Thus, I have concluded that the third and fourth respondents are not lawful members of the National Assembly; it would follow that their appointments are unlawful,” she held.
The Attorney-General and Minister of Legal Affairs has since filed a Notice of Appeal in the Court of Appeal against the decision, on the grounds that the Chief Justice misconstrued and misinterpreted the law, seeking that the judgement be set aside, reversed and/or varied.