‘You can’t approbate and reprobate’

—CJ tells Nandlall in ruling that PPP/C Parliamentary Secretaries sitting illegally in Parliament 

By Svetlana Marshall

Chief Justice (ag), Roxane George, in ruling that Sarah Browne and Vikash Ramkissoon were unlawfully appointed Parliamentary Secretaries in the National Assembly, said the Attorney General, Anil Nandlall, in an attempt to defend the People’s Progressive Party/Civic (PPP/C) Candidates, found himself approbating and reprobating on a matter he had successfully argued in both the High Court and Court of Appeal.

Opposition Chief Whip, Christopher Jones, in challenging the appointments of Browne and Ramkissoon, had relied on the case – Attorney General v. Desmond Morian – in which both the High Court and Court of Appeal 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.

Though Nandlall was the lead attorney representing Morian and had won the case at both the High Court and Court of Appeal, he found himself in a peculiar position, arguing against the very case.

“It does appear to me that Mr Nandlall is approbating and reprobating as he seeks to cherry pick which aspects of the Morian decision would advance his position,” the acting Chief Justice said as she handed down her judgment in the High Court on Tuesday.

The Chief Justice said while Articles 113, 103 (3) and 186 of the Constitution provide for the appointment of Parliamentary Secretaries by the President there are constitutional provisions that must be met.

Article 186 (1), in particular, states: “Parliamentary Secretaries may be appointed from among persons who are elected members of the National Assembly or are qualified to be elected as such members,” while Article 186 (3) states that “A Parliamentary Secretary who was not an elected member of the Assembly at the time of his appointment shall (unless he becomes such a member) be a member of the Assembly by virtue of holding the Office of the Parliamentary Secretary but shall not vote in the Assembly.”

The Chief Justice explained that while an elected Member of the National Assembly extracted from a List of Candidates, whose party secured seats in the House, can be appointed Parliamentary Secretary, in addition to two non-elected Members, the Constitution bars elected members who were not extracted from a List of Candidates from being Parliamentary Secretaries and or Technocrats as in the Case of Morian.

Notably, one becomes an elected member by virtue of being on a List of Candidates, in relation to which there has been an allocation of seats in the 65-Member National Assembly.

The Attorney General, who had represented Browne and Ramkissoon, had sought to distinguish the case of Morian from the one brought by Jones, but the Chief Justice (ag) said the cases are no different.

“Like the Morian Case, these respondents were on the List of Candidates for the elections; like the Morian Case, they were not extracted from the List to take seats allocated to their parties in the National Assembly; like Mr. Felix and Mr Scott in Morian, they were appointed to an Office, in this case Parliamentary Secretaries while in Morian it was Ministers; and as pointed out earlier, the appointment procedure for Ministers and Parliamentary Secretaries is the same,” the Chief Justice said.

Rejecting the Attorney General’s submission further, Chief Justice (ag) George said Browne and Ramkissoon cannot be elected and non-elected Members of the National Assembly at the same time. “…They could only be elected if they are extracted from the List of Candidates,” she emphasized.

“If Parliamentary Secretaries are to be appointed from elected members then it has to be they would have to be extracted members in which case they would have voting rights, there is no provision which precludes parliamentary secretaries from having voting rights,” the Chief Justice (ag) further added.

She, however, made it clear that the appointments of the Third and Fourth Respondents were unlawful as they were not extracted from the PPP/C’s List of Candidates.

“It seems that having been confronted with the conjoined effect of Article 186 (1) and 186 (3), this caused counsel for the respondents to abandon support for the result of Morian. Thus I have concluded that the Third and Fourth Respondents are not lawful members of the National Assembly since their membership is by virtue of their appointments as Parliamentary Secretaries and I so declare,” the acting Chief Justice ruled.

She later added that: “Having argued otherwise, I have concluded that Mr Nandlall is now trapped by his previous successful submission and now seeks to say that the results of Morian is wrong. I therefore hereby declare that the Third and Fourth Respondents are not lawful members of the National Assembly.”

Days ahead of Tuesday’s ruling, Nandlall had submitted to the High Court that it was not bound by the decision of the Court of Appeal in the case – Attorney General v. Desmond Morian, but Senior Counsel Roysdale Forde, the lead attorney representing Jones, had rejected the contention.

Nandlall 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 was either irrelevant to the current case or wrong.

“Despite submitting that the Morian Case was correct in his determination of who is an elected Member, Mr Nandlall, upon being faced with the contention, that Morian applies to the fact scenario in this case, then submitted that Morian is incorrectly decided and that this court could therefore so hold and come to its own decision that based on its interpretation of the Constitution,” the Chief Justice said as she summed up Nandlall’s submission.

Chief Justice (ag) George, however, made it clear that she was bound by the ruling of the higher court.

The Chief Justice (ag) said it is now expected that the Speaker of the National Assembly, Manzoor Nadir, who was also a respondent in the case, to act in accordance with the Law and the ruling of the Court.