Former AG blasts Govt’s claim that court has no jurisdiction

GECOM appointment challenge

After the unilateral appointment of a Guyana Elections Commission (GECOM) Chairman was challenged in the courts, the Government has responded by telling the court in its affidavit that the President’s decision is above the ambit of the courts. However, former Attorney General Anil Nandlall on Saturday blasts the Government’s contention saying that the court indeed has jurisdiction.
Commenting on Government’s response in an Affidavit to the court, Nandlall, it is the same attitude that caused President David Granger to declare that the Chief Justice’s ruling on his GECOM appointment criteria was merely an opinion.

“What is important is the continuous contention by the Government that the President’s actions are beyond review by the court; and that is reflected by this affidavit. The contention advanced here is that the court has no jurisdiction to review the exercise of presidential power. And if you understand the philosophy behind such a contention, then it answers a lot of what you see unfolding in relation to violations of the Constitution; because you have a Government which believes its head is beyond the rule of law,” Nandlall said.
According to Nandlall, the Constitution would never allow one arm of Government — the Executive — to override it without having another arm — the Judiciary — to check its action. As such, Nandlall explained, it is the doctrine of separation of powers which empowers the Judiciary to review the Executive’s action in the first place.
Solicitor General Kim Kyte in her Affidavit on behalf of respondent Attorney General Basil Williams, argues that the court should not even hear the matter, because to do so encroaches on the doctrine of separation of powers.
According to the Affidavit, “For the judicial arm to entertain and grant such an application would encroach on the very principles of separation of powers and the spirit and intendment of the constitution, and (would be) an affront to the rule of law. I will further contend that such a direction would be tantamount to a usurpation of the powers of the executive arm of government by the judiciary, who cannot govern.”

Clause 54 goes on to state: “His Excellency the President, in the exercise of his functions under the constitution or any other law, shall act in accordance with his own deliberate judgment, except in cases where, by this Constitution or by any other law, he or she is required to act in accordance with the advice or on recommendation of any person or authority.”
Clause 55 of the affidavit then declares that the President is not required, under the proviso of Article 161 (2) of the Constitution, to consult with the Opposition Leader when exercising his judgment.
In the Affidavit, the AG’s Chambers is seeking the dismissal of the legal challenge filed on the Opposition’s behalf, with “substantial costs” being awarded to the Attorney General.
“I will further contend that this entire application is absurd, misconceived, and void of legal reasoning and merit, and ought to be dismissed with substantial costs, since His Excellency the President cannot be directed to choose a person from the lists of eighteen which he specifically rejected,” the affidavit stated.
The affidavit denies that new GECOM Chairman James Patterson’s theological training and experience as a pastor are sufficient grounds to rule him out. It also says that Patterson has not served as a pastor since 2005.

The affidavit also affirms that Patterson serving on the Advisory Committee on the Prerogative of Mercy enhances, rather than reduces, his suitability for the GECOM role.
According to the Affidavit, Patterson’s omission of “acting” from his curriculum vitae was not meant to deceive, and does not negate the fact that he performed the functions of the office.
The Solicitor General also noted that since one of the nominees, Major General (retired) Joe Singh, was appointed to more Commissions of Inquiry than Patterson, the elderly GECOM Chairman could not be ruled out on such grounds.
According to Clause 49, (a) “His Excellency the President is not obligated to select a person from the three lists provided, and (b) His Excellency acted within the constitution to resort to the proviso in accordance with Article 161 (2) of the constitution when selecting Justice James Patterson.
The matter is scheduled to come up in the Supreme Court on November 16.