Appellate Court upholds Justice Patterson’s appointment as GECOM Chairman

…as PPP signals intention to appeal decision

By Shemuel Fanfair

People’s Progressive Party (PPP) Executive Secretary Zulfikar Mustapha lost his appeal to the acting Chief Justice Roxane George’s decision regarding the appointment of retired Justice James Patterson as Chairman of the Guyana Election Commission (GECOM) when the Court of Appeal handed down its ruling on Thursday. The PPP was seeking to have the court reverse Justice George’s June 8, 2018, ruling which followed Mustapha filing his case in October last year.
Chancellor of the Judiciary (ag) Justice Yonette Cummings-Edwards and fellow Appellate Justices Dawn Gregory and Rishi Persaud unanimously agreed that Justice Patterson’s appointment was not unconstitutional, saying the President was empowered to appoint a Judge, retired Judge or someone with the

qualifications if he judged the Opposition Leader’s list unacceptable. Justice Gregory in her determination opined that the three lists as submitted did not achieve consensus.
“My finding is that to submit lists with three sets of names and simultaneously ask the President, in submitting those names to choose a Chairman; in my mind, that could not have been contemplated as achieving consensus,” the Appeal Court Judge observed.
She also said the manner in which the lists were submitted was not reasonable, adding that the submission of the three lists without engagement could not have led to the selection of a “consensual candidate.”
Justice Persaud, focused on three aspects on the interpretive process of Guyana’s Constitution, having observed that while it was earlier framed with a view of giving the President unilateral power to appoint a Chairman; was moved toward a consensual approach. He said that initial engagement with the President and Opposition Leader Bharrat Jagdeo showed an “appreciation” for the consensual

nature for GECOM Chairman’s appointment.
Justice Persaud said too that any move towards unilateralism is wholly unacceptable and this could lead to abuse and would not be motivated by good faith. He outlined that there was nothing to suggest that the President acted “unconstitutionally, illegally or unreasonably in appointing Justice Patterson.
“The appointment of a former Judge results itself in impartiality and fairness and can only lead to establishing the intended balance prescribed for as a whole,” the Judge highlighted.
Chancellor Cummings-Edwards who announced the unanimous decision spoke extensively in giving background to applicant’s case. Included in the salient points she addressed was that the appellant’s case had no bearing in affecting the elections process as the challenge to Justice Patterson’s appointment was filed well before the date before Local Government Elections (LGE) was proclaimed.
She therefore determined that both the High Court and Appeal Court had jurisdiction to hear Mustapha’s case. She also harped on the point of the unilateral position being changed to one of consensus. Justice Cummings-Edwards reminded that the Constitution had earlier outlined that the President was required to select a Judge, retired Judge or one that holds the qualifications to be a Judge. This was later amended when the late Desmond Hoyte was the Opposition Leader and Hoyte could have submitted a list with any other “fit and proper” person.
The country’s most senior Judge outlined that once he found the list, in what the

framers of the Constitution opined as “not acceptable”, he could select a Judge, retired Judge or one that holds the relevant qualifications. Justice Cummings-Edwards held the view that this decision was in keeping with the proviso to Article 161(2) of the Constitution declaring that Justice George’s High Court decision upholding the appointment was correct. She observed too that the retired Judge was qualified to serve in the Chairman’s post, having served in the Commonwealth, with Guyana being included in this category.
The Attorney General in reacting to the ruling, meanwhile, said he was pleased with the court’s decision though he said the local courts have being ruling against him. He held that both the President and his acts have immunity, saying the appointment of GECOM Chair is Granger’s decision. The Chancellor had moments before ruled that the President’s acts were not immune.
“We can’t have you personally exempted and then any Tom, Dick and Harry could go to a court and attempt to examine and dissect them and you’re not present,” the AG stressed.
He said he is prepared to defend the case further even as the applicant’s Attorney Anil Nandlall confirmed to members of the media that he will be soon be taking the case to the Caribbean Court of Justice (CCJ). He expressed his disappointment over the Judges agreeing with many of his arguments, while still ruling unfavourably toward his client.
“The Judges demonstrated an understanding of the history of the provision; an understanding of what was required in the interpretation of the provision; they understood what the powers of the President were and the powers of the Leader of the Opposition was and then suddenly as they were about to make that crucial ruling, there was a mental, judicial, jurisprudential collapse in their reasoning,” Nandlall opined.
No court costs were awarded by the Appeal Court after Thursday’s decision.