The Court of Appeal on Thursday ruled that Minister within the Social Protection Ministry, Keith Scott, and Citizenship Minister Winston Felix illegally occupied seats in Parliament as they were elected as part of the APNU/ AFC coalition’s list of national candidates.
This ruling reaffirmed the late Chief Justice Ian Chang’s ruling in February 2016, which the APNU/+AFC administration had appealed contending that Chang’s was bad in law and a breach of the principles of natural justice.
The coalition government also argued through its lawyers that at the time of delivering the ruling, Chang, who was the outgoing Chief Justice, was functus officio.
This term is used specially to define an officer who is no longer in office or of an instrument that has fulfilled its purpose.
However, the Appeal Court, after hearing and reviewing lengthy arguments on the case in December 2019, delivered the ruling on Thursday afternoon to Solicitor General Nigel Hawke and his deputy, Deborah Kumar, who represented the Government.
Meanwhile, Attorney-at-Law Rajendra Jaigobin appeared on behalf of former Attorney General (AG) Anil Nandlall, who had initially represented the People’s Progressive Party/ Civic (PPP/C) when the hearings began.
The appeal was heard at the bench of Justices of Appeal Rishi Persaud and Dawn Gregory and High Court Judge Franklyn Holder.
All three Justices ruled that Ministers Felix and Scott cannot become Technocrat Ministers under Articles 103(3) and 105 of the Constitution and as such, not allowed to vote since they were not elected by the people.
They agreed with the argument put forward by the former AG last month that the Ministers were elected as members of the National Assembly pursuant to paragraph Two of Article 60 or Article 160 (2) of the Constitution, as defined by Article 232 of the Constitution.
Once elected by the people, the Constitution does not permit such a person to sit in the National Assembly without being able to vote; it is only those persons who are not on a list, and, therefore, did not face the electorate, who can sit in the National Assembly without the right to vote.
In submissions in December, Nandlall had requested that the Government’s appeal be dismissed with costs, noting that he was not challenging the qualification of any person to be elected as a member of the National Assembly but the fact that Ministers Scott and Felix were not extracted from the list upon which they were elected.
He submitted, “The challenge is solely directed to the President’s exercise of his powers to appoint Ministers, and having regard to the relevant provisions of the Constitution, the challenge is that Messrs Felix and Scott are not qualified to be appointed Ministers under those provisions on the ground that they are elected members of the National Assembly and only non-elected members of the National Assembly can be appointed to those positions [as Technocrat Ministers]”.
Additionally, he had urged the court to deliver its ruling within a reasonable time, as this case raises constitutional issues of some importance. He said, “More likely than not, this issue will arise again when Ministers are to be appointed after the March 2020 Elections. It will, therefore, be of great assistance if a ruling can be given earliest by this Court, so that, if an appeal is to be filed to the Caribbean Court of Justice, every effort can be made to have the hearing and determination of the same, expedited and concluded before March 2020.”
However, the Government had continuously insisted that the ruling by the late Chief Justice Chang in 2016 was something it could not have accepted, as it was of the view that the Ministers were properly appointed. Therefore, it took to the Court in the form of this appeal with the hopes that the ruling of the late Chief Justice Chang would have been quashed.
