In democracy, leaders step aside when they are voted out of office. That speaks to the importance and strength of institutions, not individuals; and to the power of the people, not those who would usurp their power.
Bradley Freden, U.S. Representative to the OAS
A litmus test of any democracy is the peaceful and orderly transfer of power if that is so ordained by the expressed will of the people. Sadly, Guyana has failed that test… But the pernicious actions of a few have wreaked considerable damage to Guyana’s image and reputation. Even if this debacle is soon and satisfactorily resolved, it will perhaps take a generation and significant institutional reform for that damage to be fully repaired. The people of Guyana did not deserve this.
Former Jamaica Prime Minister Bruce Golding
In last week’s article, we stated that the Chief Justice had identified the following issues that needed to be addressed in the application by Ms. Misenga Jones seeking to prevent the Elections Commission from declaring the results of the 2 March national and regional elections based on the recount:
(a) Whether the High Court has jurisdiction to hear the matter;
(b) Whether Section 22 of the Election Laws (Amendment) Act of 2000 is constitutional or unconstitutional. (This section vests with the Commission the authority to make an Order to remove any difficulty that appears to it expedient or necessary in connection with the application of the Act, Representation of People Act, National Registration Act or any relevant subsidiary legislation);
(c) Whether the gazetted recount Order (Order No. 60 of 2020) is valid to permit a declaration of the elections results based on the recount;
(d) Whether the ten district declarations by the Returning Officers should be set aside; and
(e) Whether the issues are res judicata, given the decision of the Court of Appeal in Moore v GECOM & Others and the CCJ ruling in Ali &Jagdeo v David & Others. (Res judicata refers to a matter finally decided on its merits by a court having competent jurisdiction and not subject to litigation again between the same parties.)
Last Monday, the Chief Justice handed down her ruling after hearing arguments the previous Friday from the lawyers for the applicant and those from the respondents’ lawyers. In today’s article, we provide a summary of the ruling.
High Court’s jurisdiction to hear the matter
The Chief Justice referred to the dicta in Norton (Application by Aubrey Norton for Writs of Certiorari and Prohibition [1996-1998]) where Justice Bernard stated that the court can exercise a supervisory jurisdiction in election cases outside the challenge to the validity of the elections via an election petition. She also cited the ruling of the Court of Appeal in Moore that the Court can exercise supervisory jurisdiction where GECOM has acted or is about to act outside of its powers.
Additionally, the Chief Justice referred to her ruling in Holladar (Holladar v Mingo & Others) in which she held that the Court had jurisdiction to hear an application regarding whether a person exercising authority has complied with his/her statutory duties. She also relied on Hamilton (Joseph Hamilton v Guyana Elections Commission, Bharrat Jagdeo & AG 40M/2001).
The Chief Justice ruled that the High Court had jurisdiction to hear the application of Ms. Jones.
Constitutionality of Section 22 of the Election Laws (Amendment) Act of 2000
The Chair of GECOM had issued Order No. 60 of 2020 for the recount exercise in accordance with Section 22 of the Election Laws (Amendment) Act. The applicant’s main contention was that this section conflicts with articles 160 and 170 of the Constitution that
provide for Parliament to be the law-making body and to make laws relating to election matters.
The respondents’ lawyers, however, argued that Section 22 confers limited authority on GECOM to issue an Order to remove any difficulty arising in the application of the election-related laws; and it is consistent with Article 162. That article empowers the Commission to take appropriate action to ensure ‘impartiality, fairness and compliance with [the] Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid’. The respondents’ lawyers contended that Order 60 does not amend any legislation.
Additionally, the respondents’ lawyers raised the issue res judicata which was pronounced on by the Court of Appeal in Moore on the court’s ability to enquire into the constitutionality of Section 22. The applicant, however, claimed that the court’s pronouncement was obiter dicta (remarks or observations made by a judge, though included in the opinion, not being part of the decision) and not ratio decidendi (the court’s reasoning for the decision). The Chief Justice, however, disagreed and noted that even if it were obiter dicta, the words of Ward J in Ying v Song [2009] NSWSC 1344 are relevant:
It has long been the case that the weight accorded to obiter dicta will vary depending on the circumstances in which those dicta fell and that considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position in the judicial hierarchy, must be afforded the greatest weight and should be departed from only with the greatest of caution. (Paragraph 35)
The Chief Justice ruled that the principles of res judicata apply to the application of Ms. Jones.
Validity of Order No. 60 of 2020 in relation to the recount exercise
The applicant’s main contention was that in view of what she claimed to be the unconstitutionality of Section 22 as well as the CCJ ruling in Ali at paragraphs 37, 45 and 52, Order 60 is invalid. The respondents’ lawyers, however, felt otherwise and considered that the ruling must be read as a whole. They also argued that the Court of Appeal permitted the recount by its decision in Moore and David. They felt that the matter is res judicata.
The Chief Justice drew attention to various paragraphs in the CCJ ruling, including the last sentence in paragraph 52 which states that ‘[w]ith respect to the notion that Order 60 could either impact interpretation of the Constitution or create new election regime at variance with the plain words of the Constitution is constitutionally unacceptable’. She concluded that:
An holistic review of the CCJ judgment in Ali supports the contention of the Chairperson and the added respondents that this issue is indeed res judicata. Thus, the interpretation of the CCJ decision by the applicant, the CEO and the AG is hopelessly flawed. The CCJ judgment lends to the ineluctable conclusion that the recount votes are ex facie valid. Hence the view express-ed that any irregularities would have to be addressed via an election petition. (Paragraph 46)
Thus, both courts, by which I am bound, have pronounced on this issue. This court, therefore, cannot rule that O 60 is invalidated. (Para-graph 60)
The issue is therefore res judicata. (Paragraph 61)
Status of the declarations of the ten Returning Officers
The applicant contended that the 13 March declarations by the ten Returning Officers were fully compliant with the Law and the CCJ ruling in Ali; and are still valid and, although held in abeyance, were never invalidated, or set aside by any Court of competent jurisdiction. Order 60 therefore could not permit new declarations as this would be unconstitutional in the context of Article 163. The applicant further argued that Order 60 could not be made retrospective so as to nullify the ten declarations.
The Chief Justice’s conclusion was that the ten declarations were overtaken by events whereby GECOM considered there were difficulties that had to be addressed subsequent to the declarations in order to produce a credible vote count. It did so through the issuance of Order 60 which could not be considered to have retrospective effect. She also referred to paragraph 109 in Moore in which it was stated that it is within the functions of GECOM to resolve any controversy as part of its responsibilities to deliver the results of the elections.
The Chief Justice also referred to paragraph 38 of the CCJ ruling in Ali in which it was stated that the intention of Order 60 was ‘to provide an open, transparent and accountable recount of all the votes cast in those elections’. She also cited Section 18 of the Election Laws (Amendment) Act 2000 which provides for the Chief Elec-tion Officer (CEO) and the Commissioner of Registration to be subject to the direction and control of the Commission, notwithstanding anything in any written law. (Emphasis added.) In this regard, she stated that while the CEO is expected to act independently, he is not a ‘lone ranger’ and does not have a constitutional mandate under Article 177. Rather, it is the Chair of GECOM and the Commission that have such a mandate, and in producing a report based of Section 84 of the Representation of People Act, one would expect the CEO to be guided by the Commission. This the Chairperson sought to do via her letters to the CEO.
The Chief Justice also alluded to the CCJ ruling that unless overturned by a Court in an election petition, the only data that could be used to declare the results of the elections would have to be the recount results or data. She concluded that ‘the ten declarations cannot be resurrected at this point in time. In this regard, there can no longer be an impasse between the Chairperson and the CEO as to the effect of art 177(2)(b) and s 96’. (Paragraph 77)
Res judicata
The Chief Justice stated that some of the 28 claims of relief that the applicant was seeking have already been dealt with in Moore and Ali, and cannot therefore be re-litigated. Some were exactly the same while others were couched in different words. She explained the principles of res judicata, including the comments of the CCJ in Garraway v Williams [2011] CCJ 12 (AJ) that three essential conditions must be satisfied: there must be an earlier decision covering the issue; there must be a final decision on the merits of that issue; and the earlier suit must involve the same parties or parties in privy with the original parties.
The Chief Justice concluded as follows:
In my view, and so hold, when there is a public interest litigation such as this litigation, barring a new issue arising, or one that can be distinguished, or a claim that the judgment was improperly obtained e.g. through misrepresentation of facts or law, or the perpetration of fraud on the court, an applicant is bound by any decision on an issue that has been raised and adjudicated on previously. There must be finality to judicial decisions. Myriad of persons cannot be permitted to engage the court with multiple applications regarding the same issue which has been decided, and shield behind the claim that they were not party to the previous proceedings. To so permit would be a waste of precious judicial time and resources. In short order – this cannot be allowed. (Paragraph 83)
The reliefs sought are all based on issues that have already been litigated previously and determined by Courts that take precedence over this High Court. Apart from res judicata, under the common law system, applying the principle of stare decisis, I am bound to follow the decisions of the CA and ultimately the apex court, the CCJ. (Paragraph 85)
The application is accordingly dismissed. (Paragraph 86)
Note: Stare decisis is the doctrine under which courts adhere to precedent on questions of law in order to insure certainty, consistency, and stability in the administration of justice with departure from precedent permitted for compelling reasons (as to prevent the perpetuation of injustice. (Merriam-Webster)
