President not above the law – Nandlall tells Appeal Court

GECOM Chairman challenge

As the case of People’s Progressive Party (PPP) Executive Secretary Zulfikar Mustapha challenging the unilateral appointment of retired Justice James Patterson as Guyana Elections Commission (GECOM) Chairman continued, the applicant’s Attorney, Anil Nandlall is urging the Justices of the Appeal Court to essentially rule that President David Granger was “not above the law”. This was among several arguments put forward in further submissions by Mustapha’s Attorney, who on Tuesday warned of the dangers of being unable to judicially question the President’s actions.

Nandlall and Attorney General Basil Williams were required to make submissions to the court on four aspects of law ahead of the court’s decision, which is scheduled to be handed down on Thursday morning. These focused on whether the Orders sought in paragraphs iii and iv in Fixed Date Application dated October 23, 2017 or the effect of those orders can be granted by way of these proceedings; Whether Article 177 of the Constitution has any bearing on the President’s role under Article 161(2). The other questions queried: Whether the role of the Leader of the Opposition in submitting a list under Article 161(2) is restricted only to the category of “other fit and proper persons” and; whether the list is still valid, if not all six persons are deemed not unacceptable.
Chancellor of the Judiciary (ag), Justice Yonette Cummings-Edwards and fellow Appeal Court Justices Dawn Gregory and Rishi Persaud are presiding over the matter. The PPP is seeking to have the Court reverse the June 2018 High Court ruling by acting Chief Justice Roxane George, SC, who upheld Justice Patterson’s unilateral appointment.
During Tuesday’s hearing, Attorney Nandlall advanced that under the Constitution, Guyana is governed by the rule of law, adding that no one is above the law and the actions of all are judicially reviewable, including the President. The Attorney critiqued the totality of the State’s arguments which included that the President “acted rationally and reasonably” in rejecting the three lists of 18 names which the Opposition Leader submitted.

He conceded that while the President could not be personally dragged away from his duties, his actions were reviewable. He stressed that the Chief Justice in her June ruling “never said” that President Granger was omnipotent.
Earlier during the proceedings, the Attorney told the Judges that even though the President did not appear himself in proceedings, the Attorney General would be named as the proper party in the legal suit. T

his point was later challenged by Williams, who said that Nandlall did not cite the authority on which the AG was answerable.
Williams, in his presentation, opined that the President was an “executive of one”, noting that Mustapha’s case attempted to “reduce the President” to the role of a public officer. Having made legal citations, the AG observed constitutional protections that bar the court from assuming any jurisdiction over the President.
“The President is not above the law, but he is entrusted to carry out the people’s interest,” the AG submitted.
Solicitor General Kym Kyte-Thomas, speaking on the point of the President’s decisions on the submitted lists, argued that the President should have been given a fair chance to make a choice among the six persons. To this end, she stressed that the “entire list” must be acceptable and must maintain its integrity.
When the Chancellor interjected and asked whether the Head of State could “pick, chose and refuse”, Kyte-Thomas posited that the President’s choices must not be limited and that the six persons on the list “must not be tainted”.
In October last year, the PPP’s Executive Secretary filed an injunction to have the court rescind Justice Patterson’s appointment which came days after his appointment. However, Justice George on June 8, 2018 ruled that the Constitution of Guyana allows for the President to unilaterally appoint someone to fill the position of GECOM Chair.
The PPP has argued that the retired Judge was unqualified for the post, and had petitioned the court to order the President to choose a person from the 18 names submitted. The acting Chief Justice, in her ruling, had, however, stated that there was nothing before the court to support a finding that the President had acted unlawfully or irrationally in resorting to the proviso to Article 161(2); and there is nothing to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM.
According to the acting Chief Justice, the Opposition did not produce evidence to support the contention that Patterson was unqualified for the position. She outlined in her ruling that the President should have given reasons for his rejection of the 18 nominees submitted by the Opposition Leader. In the appeal, Nandlall, on behalf of his client, said that the learned Chief Justice misconstrued and misinterpreted the role of the Leader of the Opposition in Article 161 (2) of the Constitution of the Cooperative Republic of Guyana and as such, was asking the court to overturn the High Court ruling.