ATTORNEY-General and Minister of Legal Affairs, Anil Nandlall, S.C., on Friday filed a Notice of Motion in the Court of Appeal, seeking an order to stay the effect of the orders and declarations granted by Chief Justice (ag) Roxane George, C.C.H, S.C., in the matter where she ruled that two Parliamentary Secretaries are not lawful members of the National Assembly.

In the matter, Opposition Chief Whip, Christopher Jones had filed an application in the High Court 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.

A stay, in judicial proceedings, is a court order halting or suspending the proceeding, temporarily or indefinitely. If granted, the stay would effectively allow Brown and Ramkissoon to continue to sit as members of the National Assembly until the matter is completely adjudicated upon.

Subsequent to the Peoples Progressive Party Civic (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 had contended that Brown and Ramkissoon cannot be appointed as non-elected Members of Parliament (MPs), since they were named on the PPP/C’s List of Candidates for the March 2, 2020 General and Regional Elections.

His submissions to the High Court relied heavily on the decision in Desmond Morian v Attorney-General et anor [2015], in which Nandlall, at the time a member of the Opposition, 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 Chief Justice, on April 20, 2021, ruled in favour of Jones, given that she was bound by the decision of the Court of Appeal in the Morian case, based on the legal 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.

In her ruling, she also noted that the issue in the matter does not pertain to holding seats in the National Assembly, but rather surrounds strictly membership of the National Assembly.

She explained that 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 those 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

In an affidavit in support of the notice of motion, the Attorney-General’s Chambers Public Trustee and Official Receiver, attorney-at-law, Prithima Kissoon, posited that she is advised by the Attorney-General and do believe that the Chief Justice “erred and misdirected herself in law” by failing to appreciate that although there are similarities, there are also differences in the constitutional regime pertaining to the appointment of technocratic ministers vis-a-vis Parliamentary Secretaries.

Kissoon, to buttress her argument in favour of granting the stay, cited the precedent set by then Chief Justice Ian Chang, S.C. in the Morian case whereby, she highlights, that an application for a stay of execution of the effect of the decision in the matter was granted “without hesitation” until the hearing and determination of the matter in the Appellate Court.
Kissoon highlighted that Brown and Ramkissoon have already been assigned “important constitutional parliamentary duties”, and that without a stay of the proceedings, they will be unable to discharge those duties, to the detriment of the public good, and that Jones will suffer no harm or prejudice if they continue to sit in the National Assembly.

Taking into consideration the listed circumstances, Kissoon prays that the Court grants the Orders prayed for in the motion, namely, the stay; that the Court of Appeal fixes an “early date” for the hearing and determination of the Notice of Motion; that the court dispense with all other formalities and procedural requirements and order an early date for case management and costs.