Acting Chief Justice Roxane George-Wiltshire will on Monday rule on the lawsuit seeking to block the Guyana Elections Commission (GECOM) from declaring the winner of the March 2nd polls using the votes from the national recount.
During a virtual hearing that last for over five hours, attorney John Jeremie for the applicant, Misenga Jones, contended that the court has the jurisdiction to hear his client’s application, which in part seeks to advance that Chairperson of GECOM, retired Justice Claudette Singh, can only make a declaration from the report submitted by Chief Election Officer (CEO) Keith Lowenfield.
The Chief Justice, who is to deliver her ruling at 4pm on Monday, will have to first determine whether or not she has jurisdiction to hear the matter before considering the case brought by Jones and counsel for her and including those representing the new parties which also contested the elections, debated the issue during the hearing yesterday.
Kim Kyte-Thomas, the attorney for the Chair-person, vehemently argued that the court does not have jurisdiction to hear the case and stated that the issues raised by Jones fall squarely to be decided by an elections petition in accordance with Article 163 of the Constitution.
These sentiments were shared by Senior Counsel Douglas Mendes, who represents PPP General Secretary Bharrat Jagdeo and PPP/C presidential candidate Irfaan Ali.
Expressing a contrary view, however, Jeremie argued that where a public official (in this case an elections officer) fails to follow what he calls proper procedure stipulated by law, the court’s supervisory jurisdiction can be invoked.
During the hearing, Jeremie, like Attorney General Basil Williams—a named respondent to the proceedings—argued that where the actions of such an officer contradicts the law, it is subject to judicial review.
“This is not an elections petition case,” Jeremie stressed, adding that no petition can resolve the current impasse which exists between the Chair-person and CEO.
He said that contrary to what Mendes has advanced, his client does not dispute the validity of the elections, but rather the processes being employed following the recount by which a declaration is attempted to be made.
He is of the view that the court has a narrow jurisdiction to ensure that the proper procedures are followed “and we think it applies here in the issue between the Chairperson and CEO,” Jeremie said, even as he emphasised that in exercise of its supervisory capacity the court can offer judicial review.
Meanwhile, addressing the issue that his client’s case seeks to litigate issues already decided upon in other cases connected with these elections Jeremie said that this could not be, as Order No. 60 which facilitated the recount was not in being at the time.
Jeremie argued on behalf of his client that Section 22 of the Election Laws (Amendment) Act (ELA) is unconstitutional since it grants the Guyana Elections Commission the power to make and amend laws under that Order.
According to him, since that Section is unconstitutional the recount order drafted and implemented under its authority is also unconstitutional as are the recount results from the elections.
This prompted the chief justice to enquire from counsel the effect the Court of Appeal’s ruling in the Ulita Moore case—an earlier case connected with these very elections – , would have on her since she would be bound by its pronouncements that the issues in Section 22 would fall under an elections petition.
Jeremie, however, expressed the view that the court above made no definitive pronouncements on that specific issue, but rather made comments obiter (in passing), which are not binding on the chief justice.
The judge pointed out that it could not be obiter since the court had dedicated an entire section/heading dealing with the constitutionality of Sections 22.
Jeremie, however, held to his view that the pronouncements are obiter and therefore do not bind the court.
He said his attack on Sections 22 was frontal because it affronts the separation of powers doctrine.
He said that the delegation of power to GECOM to amend laws is an abdication by Parliament of its law-making powers with respect to the making of laws and policy pertaining to the conduct of elections.
Humpty Dumpty
Describing Section 22 as “bad,” Jeremie likened what he called its unconstitutionality to the Humpty Dumpty nursery rhyme, saying “all the king’s horses, all the king’s men cannot put Section 22 back together again.”
As is his client’s contention, Jeremie said that declaration of results made by the returning officers for the 10 electoral districts prior to the recount are what are to be used by the CEO in compiling his report and by the chairperson to make a final declaration.
He then added that those declarations can only be set aside by an elections court and not pursuant to any order following any recount even as he reemphasised that Order 60 which facilitated the recount is invalid.
He sought to point out that the results declared by the returning officers had always been in abeyance as Order 60 had stipulated and had not been done away with.
Kyte-Thomas was forceful in pointing out that the applicant had to assess the recent Caribbean Court of Justice’s (CCJ) decision which made certain observations of Order 60 as a whole and could not cherry-pick aspects which suited her and disregard others parts of the decision.
On this point she reminded that the apex court did say that subsidiary legislation (Order 60) could not trump the constitution which is supreme.
Against this background she said that GECOM at no time tried to trample Article 163 of the Constitution and that that was never the intention of Order 60, but rather only to arrive at a final credible count of the ballots cast.
She said that GECOM has not sought to invalidate any vote; a function that she said is only for the exclusive jurisdiction of the High Court through an elections petition by which any such issue would be addressed.
“GECOM cannot take upon itself the powers of the High Court under 163 (1) (b),” Kyte-Thomas said.
She said that all the issues raised by Jones had already been litigated and only framed in a different manner and mounted by a different litigant.
On this point, she said that it could not be the position of the law that the same issue could continue being litigated once it is by a different litigant. If this were the case she said “the elections issue will never end.”
It was at this point that Jeremie, however, said that the issues are different. He said his client is questioning the validity of Order 60, while Moore’s case sought to challenge the recount.
He said that when the Court of Appeal handed down its ruling in that case, it was to the narrow extent that GECOM could not have CARICOM supervise the recount process as that power belonged only to the Commission.
Stillbirth
In his address, the CEO’s attorney, Neil Boston SC, shared the sentiments expressed by Jeremie, arguing that when the Moore case was heard there was no Order 60.
He likened it unto a “stillbirth” and being “dead on arrival.”
According to him, Order 60 which was born out of Section 22 was still-born because what that Order did was to give GECOM unlawful power to resolve an elections dispute which Article 163 vests only in the exclusive jurisdiction of an election court.
Metaphorically, he said that it tried to give GECOM a broom to sweep what only the High Court can.
Attorney Kashir Khan, who represented The Citizenship Initiative and Change Guyana political parties, however, said that while Order 60 may have had some breathing difficulties and the CCJ provided incubation…”what Boston wants us to do, is throw out the baby with the bath water.”
This he said could not be allowed.
Boston said that the first case raised by the opposition PPP/C went to questioning the tabulation of votes for Region 4 by its returning officer. This, he said, was the backbone of all the litigation which would thereafter follow and for which in the first place should have been addressed in an elections petition.
He submitted that since Order 60 is subsidiary legislation it cannot be inconsistent with substantive legislation, while noting that what Section 22 purports to do is give GECOM the right to introduce new legislation through that Order.
By extension, he said that when GECOM amended Section 84 of the Representation of the People Act (RoPA) to give itself power to conduct a recount, is was actually acting unlawfully.
When asked, he told the Chief Justice that Order 60 amended Section 84 by allowing GECOM to recount votes which were already deemed to have been final while stating that such an inquiry as to validity of votes could only have been for an elections court via an elections petition.
According to Boston, up to that point of embarking on a recount, the true will of electorate was already certified and sent to CEO by the returning officers of the 10 electoral districts and it was therefore only an elections court which could have determined otherwise.
Boston held to his view that Order 60 was unlawful and no declaration flowing therefrom could be the base for any declaration by the chairman through that subsidiary legislation and as such Order 60 is invalid.
The Chief Justice sought to enquire from counsel if the votes from recount were in favour of the incumbent APNU+AFC coalition whether he would have said that Order 60 was invalid?
“I would have,” Boston declared, stating that he was interested in justice and fairness, while pointing out that he does not represent the coalition, but rather the CEO.
Williams, in his address, told the court that the report of the CEO of July 11th with incumbent David Granger winning the presidency is what under Section 177 (2) (b) the chairperson is obliged to have acted on.
This then prompted the Chief Justice to enquire from Williams what would be the case if the CEO’s advice in his report is flawed. To this Williams said that an elections petition would have to be mounted to challenge such a situation.
To a follow-up question, the Attorney General told the judge that the CCJ never endorsed Order 60, but rather alienated it.
Williams then said that it is because of this that there must be a reverting to the initial declaration which was done by the statutory officers and by whom votes were tabulated and cannot be invalidated by anyone except an election court.
According to Williams, following therefrom, the Chairperson can only declare David Granger president.
Echoing similar sentiments was attorney Maxwell Edwards, who appeared in association with Williams. He advanced that Section 177 (2) stipulates that Chairman must act on advice of the CEO.
Dangerous
Senior Counsel Ralph Ramkarran who represents the Liberty and Justice Party, however, noted that what the law envisioned is that it is the CEO who makes the submission of the report and not that whatever he submits “must be accepted.”
He said that the Constitutional Reform Commission had sought to remedy this very issue following the 1980 constitution even as he noted that to vest such powers unilaterally in a CEO would be dangerous if the Commission was bound only to accept what he/she wanted to submit, even where the will of the people showed otherwise.
Counsel said it is for this very reason that under Section 18 of the RoPA the CEO is subject to the directions of the Commission. He explained that the CEO is not above the Commission.
Mendes expressed these very sentiments.
He added, too, that contrary to Jeremie’s arguments there is no basis on which one can make a distinction between this and Moore’s case.
He said that while he agrees with Jeremie that there is a dispute and impasse between the chairman and CEO, this can be addressed by Section 18 of the RoPA where he is now subject to the direction and control of the Commission even though he may genuinely feel the recount results may be wrong.
Mendes said that the law has to be upheld and the CEO would have to reserve his opinion and have the matter proceed to an elections petition.
In her application, Jones contends that Singh can only make a declaration from the report submitted by Lowenfield and that neither she nor the Commission can dictate to him what his report should contain.
As a result, Jones asserts that GECOM is obligated to accept the CEO’s report of June 11th, in which he relies on the declarations made up to March 13 by the Returning Officers for the 10 administrative regions.
Those declarations, which were disputed due to the manipulation of the Region Four results, had been held in abeyance as the recount was agreed to. The recount showed the PPP/C won the majority of votes, while Lowenfield has sought to declare results in favour of the incumbent APNU+AFC.
Jones is asking the court to make a number of declarations, including that Singh has failed to act in accordance with the advice of the CEO in his most recent report as mandated by Article 177(2) (b) of the Constitution.
Following a ruling handed down by the CCJ a week ago, Singh had instructed Lowenfield to submit a report using tabulations from the national recount of ballots cast on March 2nd.
Lowenfield has, however, repeatedly submitted reports which show a win for the incumbent.
