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…. ahead of CJ’s decision on appointments of Parliamentary Secretaries
By Svetlana Marshall
Ahead of Tuesday’s ruling on whether the appointment of People’s Progressive Party/C (PPP/C) Parliamentary Secretaries Sarah Browne and Vikash Ramkissoon was in breach of the Constitution, the Attorney General Anil Nandlall, S.C told the High Court that it is not bound by the decision of the Court of Appeal in the case – Attorney General v. Desmond Morian, but Senior Counsel Roysdale Forde, in rejecting that contention, submitted that the decision of the higher court is binding on the lower court.
In that case, the Court of Appeal, in January 2020, had affirmed a judgement handed down by the late Chief Justice Ian Chang in 2016, as he then was, and ruled that the then Minister within the Ministry of Social Protection, Keith Scott and the Minister of Citizenship Winston Felix could not have sit in the House as Technocrat Ministers on the basis that they were listed on the A Partnership for National Unity + Alliance For Change (APNU+AFC) List of Candidates.
Nandlall, in his most recent written submission to the Chief Justice (ag) Roxane George, said the doctrine of “stare decisis” indicates that “as far as possible a court should follow its previous decision unless it is satisfied that this decision is wrong, or erroneous in some point of law; and an inferior court is bound by that decision of a superior court.”
In the case of Christopher Jones v the Attorney General, the Speaker, Sarah Brown and Vikash Ramkissoon, Nandlall is of the view that the ruling handed down by the appellate court is either irrelevant to the current case or wrong.
In support of his argument, he referenced to the judgement of Sir Anthony DeFreitas CJ in the case Jeffrey v Mendes .
In part, Sir Anthony DeFreitas CJ had said that: “An inferior court may decline to follow a decision of even a court of appeal if the decision is clearly wrong… The Court is not bound to follow a decision even of a Court of Appeal if clearly erroneous. There were in my recollection no less than three decisions of Lord Westbury which Vice-Chancellor Stuart declined to follow.”
Nandlall, in his written submission, told the Chief Justice that it was apposite to note that, in ‘affirming’ the decision of the High Court, the appellate judges gave no reason for the decision, nor stated any ratio decidendi on the issues which engaged the now deceased Chang CJ (ag).
“…quite importantly, it is also submitted that while affirming the High Court decision in Morian, the judges offered no ratio decidendi upon which their affirmation is based, and therefore that aspect of the decision is not binding on any other Court other than the parties that were before it. Consequently, the question of this Honourbale Court being bound by the Court of Appeal decision in Morian CA No. 19 of 2016 does not arise, as there is no ratio decidendi, regarding the substantive point, which binds this Court,” the Attorney General submitted.
However, Senior Counsel Forde, who forms part a battery of lawyers representing Jones, referenced statements expressed by Lord Hailsham of St. Marylebone in the case CASSEL & CO LTD v. BROOME & Another, in which it was said that: “The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.’’
The Senior Counsel submitted that the doctrine of stare decisis renders decisions of higher courts binding on lower courts in a legal system.
He said Njoki Ndungu, SCJ in the Supreme Court Petition No. 18 of 2014 (Consolidated with Petition No. 20 of 2014), KIDERO & 5 Others v. WAITITU and Others, also endorsed this position.
She had said that: “The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement aimed at enhancing certainty and predictability in the legal system.”
The Senior Counsel said while the doctrine of stare decisis is not a constitutional requirement in Guyana, the doctrine is of equal importance in enhancing certainty and predictability in the legal system.
“It is submitted that the decision of the Court of Appeal in DESMOND MORIAN v. ATTORNEY GENERAL cannot be said to have been a decision where there are conflicting previous decisions of the Court or there is a previous decision which is inconsistent with a decision of another court binding on the Court, as there existed no such previous decision,” Forde submitted.
Jones, the Opposition’s Chief Whip, in December 2020, had moved to the High Court to have Browne and Ramkissoon removed as Parliamentary Secretaries on the grounds that their appointments are unconstitutional and on that basis, they are unlawful members of the National Assembly of the 12th Parliament of Guyana.
Through his battery of lawyers led by Senior Counsel Forde, he has argued that because Browne and Ramkissoon were named on the People’s Progressive Party/ Civic (PPP/C) List of Candidates, they could not have been constitutionally and lawfully appointed Parliamentary Secretaries, having not formed part of the 33 Members elected to served, on behalf of the PPP/C, in the National Assembly.
The Chief Justice is scheduled to hand down her ruling on Tuesday, April 20, 2021.