Home News Parliamentary Secretaries’ appointments: Ruling in Morian v AG does not constitute binding...
…argues it cannot be used to nullify positions
The Court of Appeal of Guyana’s ruling in Attorney General v Morian does not constitute a binding precedent, and therefore acting Chief Justice Roxane George erred when she used it as the basis to nullify the appointments of Sarah Browne and Vickash Ramkissoon as Parliamentary Secretaries.
This was the main contention of Trinidad and Tobago Senior Counsel Douglas Mendes—lawyer for Attorney General Anil Nandlall, SC—when he addressed the appellate court in his bid to overturn Justice George’s decision. Mendes contended that because the Court of Appeal did not rule on the substantive issue in Attorney General v Morian and only on whether the late former Chief Justice Ian Chang had jurisdiction to hear the case, the case cannot be used as precedent.
He further contended that Justice Chang’s decision was erroneous.
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 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).
Williams had appealed Justice Chang’s decision to the Court of Appeal but lost.
At a hearing prior to last week’s hearing, Appeal Court Judge Dawn Gregory had said that she wanted to satisfy herself as to whether she should sit in the extant appeal since she was one of the Judges who had sat in the appeal against Chief Justice Chang’s ruling and what was her and the court’s position on the appeal given Mendes’ arguments.
After perusing court transcripts on the appeal court’s decision, Justice Gregory informed that High Court Judge Franklin Holder, who had also sat on the panel, had affirmed Chief Justice Chang’s decision in the Morian case. “My statement was that the grounds of appeal had included the substantive things and although no submissions had been proffered on them, I affirmed the substantive findings of Chief Justice Chang,” Justice Gregory added.
Bound by CoA decision
According to her, Justice George, in nullifying the Parliamentary Secretaries’ appointments, said that she was bound by the Court of Appeal’s decision in Morian and that she saw that court’s decision as affirming Chief Justice Chang’s decision, according to the order of court she had seen.
Justice Gregory said that Chief Justice George also related that she felt bound by that decision because she believed that Chief Justice Chang’s decision was correctly decided.
Responding to Justice Gregory, Mendes submitted that what binds later courts is the ratio decidendi of a case and not necessarily the result of the case, but the reasons given by the court for coming to its conclusion. “What we are concerned with is the proper construction of a statute in what binds later courts would be that court’s construction of the statute itself and its determination that the statute means a particular thing. If a court just simply assumes, for whatever reason that a preposition of law, a construction of an Act is a correct construction without considering arguments, then it does not constitute a precedent that binds later courts,” he argued while relying on a plethora of case law.
Inapplicable
For his part, Senior Counsel Roysdale Forde, lawyer for Opposition Chief Whip Christopher Jones, who filed the challenge against Browne’s and Ramkissoon’s appointments, told the court that the case law being relied on by Mendes to support his position is inapplicable.
He said: “I respectfully submit that the Court of Appeal… as is expressed by Justice Gregory is correct. It constituted the affirmation of the judgement of Justice Chang. The affirmation, by virtue of the court order of the Court of Appeal and the expressed statements of the Court of Appeal. What is the judgement that is currently in existence?”
Having regard to the fact that the Court of Appeal affirmed the judgement of Justice Chang and expressly said so, in the context of Guyana’s legal system, Senior Counsel Forde argued that the extant decision which exists in Guyana’s jurisprudence is the judgement of Justice Chang incorporated and accepted and affirmed into the Court of Appeal’s judgement.
Reserved decision
Apart from Justice Gregory, acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justice of Appeal Rishi Persaud make up the bench. They have reserved their decision.
Back in December 2020, the Opposition Chief Whip had moved to the High Court challenging Browne’s 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 had contended, made them elected members of the National Assembly since their names were extracted from that party’s list.
Acting Chief Justice George, in cancelling their appointments had relied on Attorney General vs Morian, which was first decided by now-late Chief Justice Ian Chang whose decision was later affirmed by the Court of Appeal.
Applying the reasoning in that case, Chief Justice George, in April 2021, had held, inter alia, that Browne’s and Ramkissoon’s appointments violated Articles 113, 186, and 103 (3) of the Constitution of Guyana.
Nandlall had appealed Justice George’s decision to the appeal court, arguing among other things, that not only was Justice Chang’s reasoning wrong but that Chief Justice George’s findings were erroneous and misconceived in law.
“[Justice George’s] decision does not accord with the clear and unambiguous binding language of the Constitution,” he had argued in one of his grounds of appeal.
According to him, 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 regarding the appointment of Technocratic Ministers in comparison to Parliamentary Secretaries.
He 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.
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.
Nandlall 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. (G1)
