The High Court on Friday discarded all of People’s Progressive Party (PPP) Executive Secretary, Zulficar Mustapha’s grounds to scrap the appointment of Retired Justice James Patterson as Chairman of the Guyana Elections Commission (GECOM), including one that he was a pallbearer of People’s National Congress Reform (PNCR) Leader Desmond Hoyte.
Mustapha, through his lawyer Anil Nandlall, had stated that Justice Patterson is affiliated with the PNC because he was a pallbearer “at a political segment” of late President Hoyte’s funeral. However, Chief Justice Roxane George-Wiltshire heaped scorn on the applicant’s contention. “Apart from a lack of clarity in what is meant by a “political segment” of the funeral, this objection is disingenuous and may even be considered ludicrous, suggesting as it does that paying respects to a departed colleague, friend or relative would mean that one subscribes to the political views and affiliations of the deceased,” the Judge said.
Among those in Court to listen to the decision were former President of Guyana, Donald Ramotar; the PPP Executive Secretary Mustapha and PPP parliamentarian, Nigel Dharamlall. Mustpaha’s application was described by the Chief Justice as “wholly misconceived” and she awarded GY$250,000 in costs to the State.
The Chief Justice further pointed out that one of Mustapha’s exhibits shows that Khemraj Ramjattan, then a PPP member, was also a pall-bearer and then President of Guyana, Bharrat Jagdeo, who is now Opposition Leader had also made remarks. “It is, therefore, difficult to see how the applicant could seek to use this example in this light, but suffice it to sat that this cannot in any way lead to a conclusion that Justice Patterson was or is affiliated with the PNC of which the President is leader or that it impugns his integrity,” Chief Justice George-Wiltshire said.
The High Court also rubbished the PPP’s Executive Secretary ‘s assertion that Justice Patterson is aligned to the PNC because of his alleged membership of a pro-PNC Facebook Group. The Chief Justice noted that there was no explanation by Mustapha’s lawyers that Justice Patterson was added to the Facebook Group by one Sheldon Britton on January 22, 2016.
Chief Justice said there was no proof whether or not the Facebook page is an official PNC page, and “it is common knowledge, in this technological age that one cannot necessarily control one’s appearance on social media sites”. “There is no evidence that Justice Patterson ever acknowledged such addition or participated in any way in the activities on this Facebook page, whether or not it is an official page of the PNC. Therefore, I do not accept the applicant’s contentions on this ground as a valid basis for challenging Justice Patterson’s appointment,” she said.
The PPP Executive Secretary’s challenge to Justice Patterson’s integrity because he had stated that he had been Chief Justice of Grenada in 1987 in his curriculum vitae rather than acting Chief Justice. Based on several exhibits by the State that show Justice Patterson had been referred to as Chief Justice. “If he acted in that capacity in that year, as indicated by the evidence which I accept and have no reason to doubt, this cannot be seen as impugning his integrity in the manner suggested by the applicant,” she said.
In addressing the ground that Justice Patterson was appointed by President David Granger as an advisor and also on a Commission of Inquiry, the High Court agreed with the State that there were inconsistencies because the Leader of the Opposition’s nominees to the President for the post of GECOM Chairman had also included government advisors such as Retired Major General, Joseph Singh and Attorney-at-Law, Christopher Ram. The Chief Justice further noted that Retired Major General Norman Mc Lean had been a Chairman of a Board into prison disturbances, and Annette Arjoon had also served on a number of public bodies. “This all suggests a lack consistency in the argument for the applicant, even indicating that it is unmeritorious and therefore untenable. The curriculum vitae of the nominees of the Leader of the Opposition, as evidenced in the application, indicate that on the applicant’s side there is a recognition that appointment to serve on public bodies or in the public service (meaning in the service of the public) does not ipso facto negate a person’s ability to serve as a Chairman of GECOM,” the Judge said.
As regards Justice Patterson’s role as a religious leader violating President Granger’s own set criteria, the Chief Justice pointed out that the PPP/ Leader of the Opposition was again inconsistent because one of his (Jagdeo) nominees was Pastor La Fleur who is a pastor and holds a senior position within his church. “The applicant, himself, has cast a shadow on Mr. La Fleur’s suitability by labelling Justice Patterson, who appears to have significantly less experience in religious bodies and work, as a Christian activist and thus unsuitable for the post if Chairman of GECOM,” George-Wiltshire added. She noted that Pastor La Fleur is currently an active religious leader and Justice Patterson’s experience as a religious leader appears to pale in comparison. The Chief Justice further stated that there is no evidence that Justice Patterson is currently a religious leader or activist.
Chief Justice George-Wiltshire said the President should have given reasons for rejecting the Opposition Leader’s nominees, but the Court could not find that the Guyanese leader’s constitutional right to unilaterally appoint a GECOM Chairman was flawed. “In light of the foregoing, even in the absence of reasons, it is difficult for this Court to conclude that the President’s decision to reject the list as being unacceptable was either illegal or irrational,” she said.
The Judge reiterated that the President could reject an entire list as unacceptable even if one person is deemed to be unacceptable.
The High Court said it could not overstep its bounds by dictating to the President that he should select one of the 18 nominees for the post of GECOM Chairman. “The short answer to this contention is that to do so would be for this Court to usurp the authority given to the President by the Constitution. The discretion to accept or reject a list and by extension the discretion to appoint one of the nominees on the list submitted pursuant to Article 161(2) lies with the President,” stated the Chief Justice in her decision.
Citing a 1994 case in which the Court had stated that a court hearing an application for judicial review of the decision of a public authority is not empowered to usurp the powers of that authority, the Chief Justice of Guyana reiterated that she could not instruct the President. “The President is authorised by the Constitution to exercise a discretion, and even if found to have been exercised unlawfully, a Court cannot substitute its own view of what should be done. To do so would mean that this Court would be deciding that the third or any list is “not unacceptable” a discretion that pursuant to the Constitution, lies in the President and not the Court,” she said.
The Chief Justice said while consensus is desired, “the Constitution does permit a unilateral decision to appoint a GECOM Chairman on the rejection of a list submitted by the Leader of the Opposition”.
President David Granger on October 19, 2017 appointed Justice Patterson as Chairman of GECOM after the Opposition Leader had submitted three lists of six nominees each, all of which were rejected. That was the first time since 1992 that the Opposition Leader’s nominees were all ignored and the President unilaterally appointed someone of his choice.
The President had even gone as far as laying down criteria to the Opposition Leader for him to come up with six names that were not unacceptable to him (Granger).
The State was represented by Attorney General, Basil Williams; Barbadian Queens Counsel Hal Gallop and Ralph Thorne, and Solicitor General, Kim Kyte.
Attorneys-at-Law, Anil Nandlall and Rajendra Jaigobin represented the PPP Executive Secretary.