‘Respectfully step aside’

-PPP/C lawyers urge Appeal Court

Douglas Mendes SC
Douglas Mendes SC

Lawyers for the opposition PPP/C are maintaining that issues raised by Misenga Jones in her challenge to the recount of the March 2 polls can only be dealt with by way of an elections petition and as a result have urged the Court of Appeal to “respectfully step aside” and allow the Guyana Elections Commission (GECOM) to finalise the results.  

Jones, whose challenge to the recount and the direction given to Chief Election Officer (CEO) Keith Lowenfield to use the results of the process to produce a final elections report was dismissed by the High Court at the start of the week, has filed an appeal, which is due to be heard by the Court of Appeal today.

She has raised a number of concerns questioning the validity of the recount, whether there was unlawful non-compliance with the constitution and Representation of the People Act (RPA) and whether GECOM has utilised its powers unlawfully.

Through a legal team led by Senior Counsel Douglas Mendes, opposition leader Bharrat Jagdeo and PPP/C presidential candidate Irfaan Ali are strongly contending that these are issues which can only be raised in an elections petition after the winner of the election is declared.

In the court filings, the PPP/C sought to remind the Court of Appeal of its own pronouncement on this issue in a recent case originating from these very elections and where it declared that the High Court declined to examine the constitutionality of election related legislation during the election period, allocating such questions to an elections petition.

The Court said that such a determination would be disruptive of the election process, and that it is well established that constitutional questions can be determined at the hearing of a petition.

Among other things, Jones wants acting Chief Justice Roxane George-Wiltshire’s ruling validating Order 60 – the recount order – to be set aside, arguing that contrary to the judge’s pronouncements, this issue has not previously been dealt with.

The appellant is of the view that the chief justice erred in law in her pronouncements that until a court decides otherwise, the recount is the only data that could be used by GECOM to declare a winner of the elections in keeping with a judgment from the Caribbean Court of Justice (CCJ). Jones is adamant that it is only the report which is prepared and submitted by the CEO to the Chairperson that ought to be used in making a final declaration.

Jones is of the view that the judge erred in law when she failed to find that the Chairperson of GECOM Justice (ret’d) Claudette Singh and the Commission itself had acted outside their constitutional and or statutory powers when Singh directed CEO Keith Lowenfield to compile his report using the recount data for a declaration and not that submitted by the Returning Officers (ROs).

Limited jurisdiction

In their submissions to the court, which was seen by Stabroek News, counsel for the PPP/C have argued that while the High Court does have jurisdiction to intervene before an election is declared, it is only to the extent to correct or smoothen the progress of the election proceeding in a supervisory capacity [jurisdiction] but not to any determination which goes to the validity of the election itself.

On this point the PPP/C’s lawyers reminded that this was done in the first challenge to the March 2 elections brought before the High Court when the court intervened where the RO for electoral district 4 was not carrying out the exercise of adding up the votes in accordance with the RPA in the presence of persons entitled to be present, thereby undermining the transparency of the exercise.

It was further pointed out that the chief justice had held that many complaints such as the non-recognition of a counting agent, the legitimacy of an application for a final count and the correct tabulation of the votes on the Statements of Poll (SOPs), were not appropriate to be considered outside of an election petition.

Through their battery of attorneys, Jagdeo and Ali respondents say that they do accept that the High Court has jurisdiction to make appropriate orders to ensure that an election is brought to a successful completion, as long as it is not being called upon to resolve any question which goes to the validity of the election.

But they contend that these are the limited forms through which the High Court would have jurisdiction to intervene.

The lawyers also point out that GECOM, as it is entitled to do, directed the CEO to produce his report in accordance with the recount but he has refused to do so, insisting instead that GECOM declare the election on the basis of the declarations made by the ROs.

Describing the chief justice’s ruling on her jurisdiction as “plainly right,” the PPP/C submits that she had correctly found that the High Court had jurisdiction to exercise its supervisory power in judicial review to attempt to resolve the impasse. They held that the CEO must abide by GECOM’s direction and produce his report in accordance with the recount.

Jagdeo and Ali, however, take issue with the breath with which the chief justice expressed her jurisdiction to intervene before an election is declared and contend that she was wrong in finding that in the exercise of her limited jurisdiction she was entitled to interpret the constitutionality of the Order 60, Section 22 of the Election Laws (Amendment) Act as well as Article 177, to determine whether the CEO, Chairperson and the Commission were acting lawfully.

The respondents contend that even though the chief judge described this as an enquiry on a narrow basis, the formulation runs contrary to established jurisprudence.

Against this background Ali and Jagdeo are contending that the Court of Appeal is bound to hold that it has no jurisdiction to determine any of the issues raised in Jones’ claim, as they must all be raised in an election petition after the election.

The PPP/C recalled in its submissions that it was because of the controversy relating to declarations for electoral district 4 and that RO’s “denial of requests for recounts,” that GECOM issued Order 60 requiring the recounting of all the ballots in all 10 districts.

The respondents note that the recount was to be carried out under the supervision of the CEO, who was required to report on the results of the recount and GECOM was then to decide whether to require the CEO to produce his report in accordance with the recount.

Against this background they contend further that the directions given by GECOM to the CEO to prepare his report in accordance with the recount must also be treated as a valid direction which the CEO is required to obey. Anything prepared by the CEO outside of this Order, they say, is unlawful and GECOM would accordingly not be obliged in law to use it.

‘In for a penny’

Meanwhile, the lawyers for Ali and Jagdeo have reasoned that if the appellate court were to come to the unlikely conclusion that the recount was unlawful, for whatever reason, and that the CEO was right to use the declarations of the ROs to prepare his report, it (the court) would be obliged to consider all challenges to the legality of the declarations, including in particular the contention that the declarations for Region Four “is fraudulent” and that any report based on it is likewise fraudulent and unlawful. “In for a penny, in for a pound,” they say.

They contend further that Lowenfield is in possession of the SOPs for District Four and could have used them to disprove any allegations to the contrary but he did not.  “This Court would be acting contrary to law were it to bury its head in the sand and fail to give full effect to the undisputed evidence,” the respondents said.

They say that the major distinguishing factor between the recount and the declarations is the results in relation to District Four.

They argue that whether the recount was validly ordered or not, the fact is that the ballots in each of the polling stations in District Four had been recounted under a process which the CCJ has described as open, transparent and accountable.

They argue that there is no evidence that the recount of the ballots in District Four is inaccurate and that while the recount shows that APNU received 116,941 votes, the declarations for that district show that the APNU received 136,057 votes.

Against this background the PPP/C says it is now plain beyond any doubt that RO for District Four, Clairmont Mingo, “gave the APNU 19,116 more votes than were actually cast for that party’s list.

According to Ali and Jagdeo, if Mingo’s declaration is to be acted upon and the court accedes to the Jones’ request to grant relief requiring the Mingo declaration to be given effect, the court itself would be facilitating the commission of an unlawful act, the rights of the majority of the electors would be infringed, and the constitutional right to representative democracy would be undermined.

They continued, “were effect to be given to the 19,116 votes which were not cast for APNU, but which Mingo allocated to APNU, it would deny the right to vote to those citizens who voted the PPP into office and would undermine the founding principle of the Guyana Constitution that it is the people who must decide who should govern them. Giving effect to Mingo’s declaration would allow Mingo, and not the people, to decide who should govern Guyana. Article 9 of the Constitution declares that “Sovereignty belongs to the people, who exercise it through their representatives…Sovereignty does not belong to Mingo.”

The lawyers for Ali and Jagdeo state that “fraud unravels everything. This Court would also be facilitating an illegality if it were to make any order which effectuates the Mingo declaration.”

On the impasse between the Chairperson and CEO, the PPP/C says that that difference must be resolved so that the election can be declared, while noting that that the CEO is not entrusted with the powers given to GECOM and must not be allowed to determine the result of the election in defiance of GECOM’s orders. They state that “this Court must respectfully step aside and let GECOM do its job. The Honourable Chief Justice was correct to do so.”