Nullification of Parliamentary Secretaries: Judge to decide if to recuse self from hearing appeal against CJ’s decision

Appeal Court Judge Dawn Gregory-Barnes said she wants to satisfy herself that she can hear an appeal against acting Chief Justice Roxane George, SC’s decision to nullify the appointments of Vickash Ramkissoon and Sarah Browne as non-elected members of the National Assembly and as Parliamentary Secretaries.
In arriving at that decision, Justice George had used the case of the Attorney General v Morian, as a preced

ent. That case was first decided by then Chief Justice Ian Chang whose ruling was later challenged at the Court of Appeal where Justices Gregory-Barnes, Rishi Persaud, and Franklin Holder adjudicated and made a certain ruling. Appearing before the Court of Appeal on Monday, Senior Counsel Douglas Mendes, on behalf of Attorney General Anil Nandlall, SC, contended that since the Court of Appeal’s ruling in the Attorney General v Morian was only on the issue of jurisdiction and not the substantive matter, the case cannot be used as a binding precedent and therefore Justice George fell into error when she applied it in deciding to nullify the appointments of Ramkissoon and Browne.

“A court is only bound by the ratio decidendi of a case, and therefore 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,” Mendes argued.
In 2015, People’s Progressive Party/Civic (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.

In 2016, the now-late Chief 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 rationale by the Court of Appeal in its decision in the Attorney General v 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.

To recuse self or not?

Given that she was one of the Judges who heard the appeal against Chief Justice Chang’s decision, Justice Gregory-Barnes said that she will revisit that decision to clarify what position she had taken before determining whether to recuse herself from hearing the case at bar. Mendes had no objections to her sitting in the appeal.

“I would want to be satisfied that I ought to sit. And that would be a determination I would want to make for myself,” Justice Gregory-Barnes, however, told him.
The decision to recuse is at the Judge’s discretion and is usually made on the main basis of actual or potential bias or the appearance thereof.
Back in December 2020, Opposition Chief Whip Christopher 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 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, refused to grant the coercive order, stating that it was left in the hands of the House Speaker to enforce her judgement.

Binding precedent
Roysdale Forde, SC, who is representing Jones, submitted that his understanding of the appellate court’s decision in Attorney General v Morian, was that the court dismissed the appeal filed by then-Attorney General Williams 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.
The Senior Counsel explained that he took the position that the Court of Appeal had embraced Justice Chang’s decision and consequently, it became a decision of the Court of Appeal and a binding precedent. He is of the view that the decision in Attorney General v Morian is a fundamental issue “one way or the other”, in the instant case, in terms of his and the court’s approach. He, therefore, asked the Court of Appeal for guidance as to the impact of Attorney General v Morian.
Besides Justice Gregory-Barnes, acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justice of Appeal Rishi Persaud, were the other Judges on Monday’s panel. The case was adjourned to January 26, 2023 for continuation/hearing.

Erroneous
Shortly after Justice George rendered her ruling, Nandlall had filed an appeal in which he, inter alia, argued that the Chief Justice’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.”
Browne and Ramkissoon were appointed Parliamentary Secretaries to the Amerindian Affairs and Agriculture Ministries, respectively. Nandlall had asked the Court of Appeal to stay Justice George’s ruling invalidating their appointments. (G1)