Appeal Court upholds CJ decision to overturn Parliamentary Secretaries’ appointments

– says appeal had some merit, but High Court correct to follow precedent

The Court of Appeal on Tuesday upheld the High Court’s decision to annul the appointments of Vickash Ramkissoon and Sarah Browne, noting that while there are merits to the appellants’ arguments, the High Court was correct to follow the precedent set by former Chief Justice the late Ian Chang.
The appointments of Ramkissoon and Browne as Parliamentary Secretaries to the Ministries of Amerindian Affairs and Agriculture respectively were challenged in the High Court in 2020 by Opposition Chief Whip Christopher Jones.
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 People’s Progressive Party/Civic (PPP/C) for the March 2, 2020 General and Regional Elections.

Jones’s case was first upheld by acting Chief Justice (CJ) Roxane George in 2021, and on Tuesday, Court of Appeal Judge Dawn Gregory affirmed George’s ruling. In dismissing the appeal, Gregory ruled that Browne and Ramkissoon are not lawful members of the National Assembly, since they were on the Candidate List.
Having considered all the arguments, Justice Gregory noted that despite the merits of the appellants’ arguments, the meaning of elected member in article 232 of the Constitution of Guyana has been pronounced upon before, such as in the case of Trotman vs Attorney General.
Justice Gregory further noted that the Chief Justice acted in law and the principle of Stare Decisis by following the precedent set in Attorney General vs Morian, which was first decided by the late Chief Justice Ian Chang in 2016, and whose decision was later affirmed by the Court of Appeal.

In 2015, PPP/C member Dennis Morian had filed a constitutional motion against then Attorney General Basil Williams, SC, 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.

AG vs Morian
AG vs Morian is a case that saw the late former Chief Justice Chang overturning the appointments of APNU technocrat Ministers Keith Scott and Winston Felix in 2016. Since they had both been on the APNU/AFC List of Candidates for the 2015 elections, Chang had ruled that they were unlawfully occupying their seats. Then-Attorney General Basil Williams had appealed Justice Chang’s decision to the Court of Appeal, but had lost.

According to Justice Gregory, the court affirms the High Court’s consistent interpretation of an elected Member of Parliament, which is taken to mean members who were extracted from the List of Candidates. It therefore must be determined if the Parliamentary Secretaries fall under the other category of persons qualified to be elected.
Justice Gregory pointed out that the Morian case lays out the qualifications for someone to be elected, which is also specified in Article 53 of the Constitution. She further noted that Chief Justice Chang had ruled that someone qualified to be elected refers to someone who had not contested the election and had met the requirements of Article 53.

Justice Gregory affirmed that the definition of qualified to be elected was intended to refer to persons who had never faced the electorate. According to her, neither Browne nor Ramkissoon fits this bill, since they were candidates on the PPP/C Candidate List but were also not extracted from the List of Candidates to be elected Members of Parliament.
And noting the importance of Article 186 of the Constitution to the case, Justice Gregory affirmed that the Chief Justice did not misconstrue the article in her 2021 ruling. The Court of Appeal therefore ruled that the appointments of the Parliamentary Secretaries were unlawful, and awarded costs.
Applying the reasoning in the Attorney General vs Morian, Chief Justice George, in April 2021, had held, inter alia, that Browne and Ramkissoon’s appointments violated Articles 113, 186, and 103 (3) of the Constitution.
She had ruled 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.
Attorney General Anil Nandlall, SC, then appealed Justice George’s decision to the Appeal Court, arguing, among other things, that her findings were erroneous and misconceived in law.
Nandlall had submitted that 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.
In fact, he 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.
He had 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, Nandlall had argued that the appeal against the Chief Justice’s ruling 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.
In the extant appeal, Nandlall was represented by Trinidad and Tobago (T&T) Senior Counsel Douglas Mendes, while Senior Counsel Roysdale Forde had appeared for the Opposition Chief Whip.