Executive Secretary of the People’s Progressive Party (PPP), Zulfikar Mustapha, is making his final bid to rescind President David Granger’s unilateral appointment of retired Justice James Patterson as Chairman of the Guyana Election Commission (GECOM), by challenging the Appellate Court’s decision at the Caribbean Court of Justice (CCJ).
In documents seen by Guyana Times on Wednesday, Attorney Anil Nandlall, who represents Mustapha, filed leave to appeal the October 19, 2018 decision of acting Chancellor Madam Justice Yonette Cummings-Edwards and fellow Appellate Court Justices Dawn Gregory and Justice Rishi Persaud that effectively declared Patterson’s appointment constitutional. Nandlall is also
Anil Nandlall
petitioning the Trinidadian-based court to grant an order that security for costs be fixed in a “reasonable sum” in addition to further orders and/or directions that the court may find “just and appropriate”. The Attorney General is listed as the respondent in the matter.
In Mustapha’s sworn affidavit, seen by this newspaper, he stated that he intends to appeal the said decision of the Court of Appeal to the Caribbean Court of Justice, having observed that the Appellate Court “incorrectly construed, misconstrued, incorrectly applied and misapplied Article 161 of the Constitution of Guyana and failed to redress the breach of the said Constitution by the State”.
He said the issues which have arisen in the case are of great general, public and constitutional importance, as “free and fair elections are the foundation of democracy, good governance, and the rule of law”.
“Guyana has an undisputed and universally recognised history of fraudulent elections presided over and administered by successive Elections Commissions chaired by two former Chief Justices of Guyana who were unilaterally appointed by
the then Head of Government/State,” he noted.
Local ruling
The applicant’s CCJ bid follows the rulings of local courts. The Appellate Court’s ruling was handed down unanimously on Thursday last while acting Chief Justice Roxane George’s similar ruling was announced on June 8, 2018. Mustapha had filed his case one year ago (October 23, 2017) but the Appellate Judges agreed with Justice George 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.
The Opposition Leader had sent three lists of six nominees which totalled 18 but all three were rejected by the Head of State, who observed that they were unacceptable. Justice Gregory in her decision observed that the manner in which the three lists were submitted did not achieve consensus. She pointed out that providing the President with lists to choose nominees was not reasonable nor was this in keeping with what the framers of Guyana’s Constitution intended.
Justice Persaud determined that any move towards unilateralism was wholly
unacceptable and that it could lead to abuse and would not be motivated by good faith. He however outlined last week that there was nothing to suggest that the President acted “unconstitutionally, illegally or unreasonably in appointing the retired Judge.
“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,” Justice Persaud had observed.
Chancellor Cummings-Edwards had declared that Mustapha’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 LGE was proclaimed.
The most senior Judge had however outlined that once the President 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 in fact held the view that this decision was in keeping with the
