High Court hears: Article 161 gives President power to review, not discretion

GECOM’s unilateral appointment
…Govt lawyers say case flawed

By Lakhram Bhagirat

People’s Progressive Party (PPP) Member of Parliament, Zulfikar Mustapha’s lawyer, Attorney Manoj Narayan argued that President David Granger does not have the discretion to appoint a Chairman of the Guyana Elections Commission, rather he has the power to review the nominees put forward by the Opposition Leader and select the most suitable name.

The Opposition had filed an injunction in the High Court on October 23, 2017, to rescind the appointment of retired Justice James Patterson as GECOM Chairman, on the grounds of unconstitutionality. The injunction is seeking a declaration that Justice Patterson is not qualified to be appointed in provision with Article 161-2 of the Constitution of Guyana.
The injunction is also seeking an order to have the appointment of Justice Patterson as Chairman of GECOM quashed and directing the President to choose a person from the 18 names submitted to him by the Opposition Leader.
The injunction was filed in the name of the Executive Secretary of the PPP and Member of Parliament (MP) Zulfikar Mustapha, who is an elected official that has legal authority.
Mustapha wants the High Court to declare that Granger’s October 19, 2017 appointment of Justice Patterson violates Guyana’s Constitution and is “accordingly unlawful, illegal, unconstitutional, null, void and of no effect” and he is not constitutionally qualified to be appointed GECOM Chairman. Additionally, he is also asking the court to grant an order “rescinding, revoking, cancelling and setting aside the appointment” of Patterson.

Narayan, who is part of the legal team representing Mustapha’s interests, made those arguments before acting Chief Justice Roxane George on Friday at the High Court.
Narayan submitted that while the President is immune from all civil and criminal charges during his tenure, his actions could be reviewed by the court and as such Mustapha is acting in accordance to that. He further submitted his client is seeking the court’s help in determining whether the rejection of the 18 names submitted by the Opposition Leader, is reasonable considering that there were names on the list that suited the demands by the President.

In addition, Mustapha is also seeking the court’s assistance in determining whether the President’s invocation of the proviso to Article 161(2) of the Constitution is unlawful and unconstitutional; that the President’s unilateral appointment of the Chairman of GECOM is unreasonable, unlawful and unconstitutional; and the Chairman of GECOM appointed by the President is not suitable, fit and proper in accordance with the spirit and intendment of Articles 161 and 162 of the Constitution.

In its written submission, the PPP MP’s attorneys argue that Patterson cannot be or appear to be politically impartial due to the fact that 1) he is a member of the advisory Committee on the Prerogative Mercy appointed by the President; 2) an advisor to the Attorney General and Legal Affairs Minister appointed by the President, 3) was appointed by the President to head a Commission of Inquiry into a prison break at Georgetown, Guyana, during the month of July, 2017 and 4) he was appointed by the President to be part of a panel to reviewing applications for the positions of Chief Justice and Chancellor of the Judiciary.
It added that Patterson was a pallbearer at the funeral of former President Hugh Desmond Hoyte and that he is a member of the Facebook group, ‘Rally around the People’s National Congress (PNC).’

Barbadian lawyers on Govt team
Meanwhile, in efforts to strengthen its case, Attorney General Basil Williams – the respondent – added two Barbadian Queen’s Counsel Ralph Thorne and Hal Gallop to its team. They now join the AG, Solicitor General, Kim Kyte and Principal Legal Advisor at the AG Chambers, Judy Stuart.
Williams said that they have always contended that President Granger has the discretion to appoint the Chairman of GECOM. He noted that the submission, by Narayan, is “an erroneous proposition.”
QC Thorne told reporters that Mustapha’s case was characterised by his attorney’s “constitutionally and legally flawed” statement since the President is guaranteed discretion. He also indicated that the statement undermines the Opposition’s case.
“I would like to think that the court would leave undisturbed the appointment of a high public official by the Head of State of this country. An appointment by the Head of State is not to be trifled with statement like that, to say that the Head of State is fettered in relation to his power to appoint,” he said.
“When you say to the Head of State that he has no discretion in relation to an appointment, you’re saying that of the six or 12 or 18 names that were submitted the President must take one of them. Now if that is the law then in effect the power to appoint is given to the Leader of the Opposition. That cannot be the state of the law,” QC Thorne added.
The Chief Justice (ag) indicated that she would inform the parties of her judgement through a Notice of Decision.