Attorney General, Anil Nandlall, has moved to the Court of Appeal to “stay” or put on hold the April 21, 2021 decision of Chief Justice, Roxane George (ag) SC, that Sarah Browne and Vikash Ramkissoon – candidates of the PPP in the last general elections – cannot legally sit in the National Assembly.
Nandlall wants Browne and Ramkissoon to continue sitting in the National Assembly until the matter is determined, arguing that there could be no harm to Christopher Jones, the Opposition Chief Whip if this happens since the Parliamentary Secretaries do not have the right to vote in the House.
It was Jones, who on December 22 last year, challenged the lawfulness of the appointment of the Parliamentary Secretaries. He argued that Browne and Ramkisson, by virtue of being candidates, were debarred from being in the National Assembly as Parliamentary Secretaries.
Browne and Ramkissoon were appointed Parliamentary Secretaries, but the Chief Justice had ruled that the positions are meant for so-called “technocrats” or those who were not candidates in the elections.
Jones’ case was that the Constitutional legal principles in relation to the appointment of Technocratic Ministers (those who are not political candidates in an election) are identical to the appointment of Parliamentary Secretaries.
Browne and Ramkisson were sworn in on September 15, 2020. Browne was designated as the Parliamentary Secretary of the Ministry of Amerindian Affairs while Ramkissoon was designated as the Parliamentary Secretary of the Ministry of Agriculture.
Jones relied heavily on the decision of Chief Justice, Ian Chang, SC, in the case of Desmond Morian vs The Attorney General and the Speaker of the National Assembly, as affirmed by the decision of the Guyana Court of Appeal in Civil Appeal No. 19 of 2016 dated 23rd day of January 2020.
In her ruling, the Chief Justice upheld Jones’ submission, considering herself bound by the doctrine of stare decisis to the decision of Chang as affirmed by the Court of Appeal.
The Attorney General had submitted that the decision of the Guyana Court of Appeal in the said case was not binding because the appellants’ only challenge in the appeal (the case of The Attorney General and The Speaker of the National Assembly v Desmond Morian) was the jurisdiction of the High Court to hear and determine the matter and abandoned their grounds of appeal.
He contended that the Court of Appeal overruled the jurisdictional objection and since the Appellants did not pursue the other ground, the appeal was automatically dismissed; in those circumstances, there was no determination of the appeal on its merits.
The Attorney General further contended that it is the ratio descendi of a case which constitutes binding precedent, and the ratio descendi in the Court of Appeal, was in relation to the jurisdictional point as there was no other reasoning in relation to the merits of the appeal.
In the end, the Chief Justice made her ruling and directed that the Speaker of the National Assembly prevent Browne and Ramkissoon from sitting in the National Assembly.
The Attorney General is asking for a hold on that decision until the appeal is determined, argued that Browne and Ramkissoon have already been assigned important constitutional and parliamentary duties and “without the interim protection of this Honourable Court, they will not be able to discharge those important duties and responsibilities, to the detriment of the public good and the people of Guyana whom they represent.”
The Attorney General contends that there is no way that the Opposition Chief Whip will suffer harm or prejudice if Browne and Ramkissoon are permitted to sit in the National Assembly until the hearing and determination of the Appeal as they are not voting members in the House.
It is the case of the State that “the Learned Hearing Judge erred and misdirected herself in law by failing to appreciate that although there are similarities, there are also differences in the constitutional regime pertaining to the appointment of Technocratic Ministers vis a vis Parliamentary Secretaries and these principles will be expansively set out and ventilated at the hearing of the Notice of Appeal and if necessary, at the hearing of this application.”
The Attorney General contended that, historically, Parliamentary Secretaries were appointed from among members of the National Assembly and that 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.
As an example, he said that in the 9th Parliament of Guyana, Ms. Pauline Sukhai, Member of Parliament, whose name appeared on the List of Candidates for the Peoples Progressive Party Civic (PPP/C), was appointed a Parliamentary Secretary to assist the Minister of Tourism as a non-elected member of the National Assembly, without any objection for the duration of that Parliamentary life.
Additionally, in the 10th Parliament, Mr. Joseph Hamilton, Member of Parliament, whose name did not appear on the List of Candidates of for the Peoples Progressive Party Civic (PPP/C), or any other List of Candidates, was appointed a Parliamentary Secretary as non-elected member without any objection for the duration of the life of that Parliament.
“In the circumstances, it cannot be disputed that the appeal filed herein 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,” Attorney Pratima Kissoon stated in her affidavit in support of the notice of appeal by the Attorney General.
