CoA likely to rule on preliminary issues in Parliamentary Secretaries’ case today

The Court of Appeal is likely to rule on a preliminary issue today before it proceeds to hear an appeal filed by Vickash Ramkissoon and Sarah Browne against the annulment of their appointments as Parliamentary Secretaries and non-elected members of the National Assembly.

Browne and Ramkissoon were appointed respective Parliamentary Secretaries to the Amerindian Affairs and Agriculture Ministries.
At a November 2022 hearing, Justice of Appeal Dawn Gregory, who sits on the court’s panel along with Chancellor of the Judiciary (ag) Justice Yonette Cummings-Edwards and Justice of Appeal Rishi Persaud, stated that she wanted to satisfy herself whether she ought to sit in the case.
In cancelling the pair’s appointment, acting Chief Justice Roxane George, SC had relied on Attorney General vs Morian, which was first decided by now late Chief Justice Ian Chang.
Justice Chang’s ruling was appealed to the Court of Appeal, where Justices Gregory, Persaud, and Franklin Holder adjudicated and made a certain ruling. Given that she was one of the Judges who heard the appeal against Justice Chang’s decision, Justice Gregory has said she would revisit that decision to determine what position she and the court had taken.
Senior Counsel Douglas Mendes, on behalf of Attorney General Anil Nandlall, SC, had contended that since the Court of Appeal’s ruling in the Attorney General vs Morian was only on the issue of jurisdiction, and not the substantive matter, the case cannot be used as a binding precedent, and so Justice George fell into error when she applied it in deciding to nullify the appointments.
“A court is bound by the ratio decidendi of a case…if the court has not made any pronouncement on the issue, it does not constitute binding authority. Even if the court on some occasions assumes a proposition of law to be correct without actually considering it, the authorities we have put before the court indicate that that does not constitute binding authority either.”
Roysdale Forde, SC, who is representing Opposition Chief Whip Christopher Jones, the respondent, submitted that his understanding of the appellate court’s decision in Attorney General vs Morian was that the court dismissed the appeal filed by then-Attorney General Basil Williams, SC, and affirmed the decision of Chief Justice Chang.
According to him, the Court of Appeal’s order specifically stated that it had affirmed Justice Chang’s ruling. He said he took the position that the Court of Appeal had embraced Justice Chang’s decision, and therefore it became a decision of that court and a binding precedent.
Nandlall, now in a different capacity, is contending that Justice Chang’s decision was wrong.
“The [Court of Appeal] did not consider whether Chief Justice Chang was correct in his determination as to the interpretation of the phrase “elected member of the National Assembly,” his lawyer Mendes said, as he maintained that the appellate court only ruled on Justice Chang’s jurisdiction to hear the case.

Background
In 2015, People’s Progressive Party/Civic (PPP/C) member Dennis Morian had filed a constitutional motion against then-Attorney General Williams, challenging the legality of the appointments of former A Partnership for National Unity/Alliance for Change (APNU/AFC) Technocrat Ministers Keith Scott and Winston Felix.
Felix, who was at the time the Minister of Citizenship, and Scott the Minister with responsibility for Labour, were candidates on the APNU/AFC’s List of Candidates for the 2015 General and Regional Elections.
In 2016, the now-late Justice Chang declared that both Scott and Felix were unlawfully and unconstitutionally occupying seats in the National Assembly due to their status as elected members (named on the Coalition’s List of Candidates).
Applying the reasoning in the Attorney General vs Morian, Chief Justice George had held that Browne and Ramkissoon’s appointments violated Articles 113, 186, and 103 (3) of the Constitution of Guyana. The Chief Justice had pronounced that they cannot be appointed as non-elected Members of Parliament (MPs) since they were named on the List of Candidates presented by the PPP/C for the March 2, 2020 General and Regional Elections.
Back in December 2020, Jones had moved to the High Court challenging Browne and Ramkissoon’s appointments.
He had contended that Browne and Ramkissoon cannot be appointed as non-elected parliamentarians since they were named on the List of Candidates presented by the PPP/C for the March 2, 2020 General and Regional Elections. This, he had contended, made them elected members of the National Assembly, since their names were extracted from that party’s list.
Among other things, he had asked the Chief Justice to grant an order compelling the Speaker of the National Assembly, Manzoor Nadir, to prevent Browne and Ramkissoon from sitting and participating in the business of the National Assembly.
The Chief Justice, however, had refused to grant the coercive order, stating that it was left in the hands of the House Speaker to enforce her judgement.

Erroneous
Shortly after Justice George had rendered her ruling, Nandlall had filed an appeal in which he, inter alia, argued that Chief Justice George’s decision that a Parliamentary Secretary cannot sit in Parliament is erroneous and misconceived in law.
“The decision does not accord with the clear and unambiguous binding language of the Constitution,” stated one of the Attorney General’s grounds of appeal.
Public Trustee and Official Receiver Prithima Kissoon, in an affidavit, said she was advised by Nandlall and believes that the Chief Justice erred and misdirected herself in law by failing to appreciate that although there are similarities in the two cases (Technocrat Ministers/Parliamentary Secretaries), there are also differences in the constitutional regime on the appointment of Technocratic Ministers in comparison to Parliamentary Secretaries.
According to Kissoon, historically, in Guyana, Parliamentary Secretaries were appointed from among members of the National Assembly, and the category of persons who may be appointed as Parliamentary Secretaries was expanded in the 1980 Constitution to include persons who were qualified to be elected.
She reminded that in the ninth Parliament, Pauline Sukhai, now Amerindian Affairs Minister, whose name appeared on the List of Candidates for the PPP/C, was appointed a Parliamentary Secretary to assist the Tourism Minister as a non-elected member of the National Assembly, without any objection for the duration of that Parliament.
The Public Trustee also reminded that during the tenth Parliament, Joseph Hamilton, now Labour Minister, whose name did not appear on the List of Candidates for PPP/C or any other List of Candidates, was appointed a Parliamentary Secretary as a non-elected member without any objection for the duration of that Parliament.
Having regard to these circumstances, Kissoon submitted that, “It cannot be disputed that the appeal is not only grounded in merit, but raises fundamental issues of interpretation of the Constitution, as well as issues integral to Guyana’s parliamentary and constitutional democracy.”