Rising global temperatures due to the burning of fossil fuels have caused severe droughts across the Northern Hemisphere. Rivers have dried up, and unprecedent wildfires have led to widespread crop failure. According to a new study by World Weather Attribution that examined the link between rising average global temperature and extreme weather, such an occurrence would normally be considered a 1-in-400-year experience. However, due to climate change, it is likely to be repeated every 20 years, which means that extreme weather is 20 times more likely. See https://www.yahoo.com/news/climate-change-made-this-summers-drought-20-times-more-likely-study-finds-184106643.html.
Last Monday, UN Secretary-General Antonio Guterres warned that the world is in “a life-or-death struggle” for survival as “climate chaos gallops ahead” and has accused the world’s 20 wealthiest countries of failing to do enough to stop the planet from overheating. Referring to the floods that caused one-third of Pakistan to be under water, Europe’s hottest summer in 500 years, and the recent hurricanes and typhoons in the Philippines, Cuba and Florida, the Secretary-General stated that:
There is no time for pointing fingers — or twiddling thumbs. It is time for a game-changing, quantum-level compromise between developed and emerging economies. The world cannot wait. Emissions are at an all-time high and rising … Failure to act on loss and damage will lead to more loss of trust and more climate damage. This is a moral imperative that cannot be ignored.
The extent of the damage to Florida’s coastline caused by Hurricane Ian could be seen from outer space, as massive flood waters and mud were dumped into the Gulf of Mexico.
In our articles of 7 September 2020, 25 January 2021 and 3 May 2021, we discussed the outcome of the filing of the two petitions, challenging the results of the 2 March 2020 national and regional elections. In the first petition 88/P, the petitioners have requested the Court to determine, among others, whether the 2020 national and regional elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission, and whether the seats in the National Assembly have been lawfully allocated.
In the second petition 99/P, the petitioners contended that the elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions. Accordingly, they requested the Court to determine the legality of the elections and of the results. The petitioners were also seeking an order to direct the GECOM Chair to declare former President David Granger the winner of the elections.
On 18 January 2021, the Chief Justice threw out Petition No. 99 because of a breach in the filing procedure for the case. Section 8 requires the petitioner to serve notice on the respondent not exceeding five days of the filing of the petition. However, the respondent, former President David Granger, did not sign the related court documents until 25 September 2020 which was outside the five-day period stipulated by Section 8.
The Chief Justice considered that non-adherence of service within the specific timeline would make the petition a non-starter, noting that Mr. Granger was a necessary party in the proceedings. She stated that there was compelling evidence to support the respondents’ argument that the former President was not served with the petition on time. The Chief Justice further noted that both the affidavit of service and the return of service documents were inconsistent, adding that while there was sufficient time within which the petitioners could have brought to the attention of the Court what they described as a genuine mistake in recording the date of service, no effort was made to so do.
The Chief Justice rejected supplementary affidavits filed by the petitioners which sought to explain that the former President made a mistake when he signed the related court documents and that the petitioners had made a careless blunder. She considered the explanations “preposterous” and “absurd.” The Chief Justice then declared Petition No. 99 a nullity and dismissed it.
In today’s article, we revisit Petition 88/P in the light of an appeal against the Chief Justice ruling on the matter.
Filing of Petition 88/P
On 31 August 2020, lawyers for Claudette Thorne and Heston Bostwick filed election petition 88/P with the High Court in accordance with Article 163 of the Constitution. That article provides for the High Court to have exclusive jurisdiction to determine, among others, any question regarding the qualification of any person to be elected a member of the Assembly; and whether an election has been lawfully conducted or the results have been or may have been, affected by any unlawful act or omission.
The petitioners challenged the declared results of the 2 March 2020 elections and requested the Court to determine, among others, whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission, and whether the seats in the Assembly have been lawfully allocated.
Chief Justice ruling
On 7 April 2021, the Chief Justice heard arguments from attorneys for both the petitioners and the respondents. The petitioners’ main argument was that Section 22 of the Election Laws (Amendment) Act 2000 under which GECOM issued Order No. 60 for the recount of votes, was unlawful. Section 22 reads as follows:
If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.
Any order under subsection (1) shall be subject to negative resolution of the National Assembly, only if Parliament is not dissolved and not otherwise, and shall not be made after the expiry of three months from the date of the election.
The respondents’ rebuttal was that the Commission is in fact empowered under the said Act to resolve the difficulties that may arise during the election process. To this, the petitioners argued that the any such difficulties ought to have been dealt with by way of an election petition, and not by an order issued under Section 22. They further argued that power could not be delegated by Parliament to GECOM, and therefore Section 22 which facilitates this, is unlawful.
The respondents countered by insisting that the Commission is endowed with the power vested in it under Section 22 which is obtained by virtue of Articles 162 and 163 of the Constitution, to resolve any difficulties it may experience. They argued that anything else would result in chaos, hence the recount Order. However, the petitioners contended that the initial declarations could only have been overturned by an election court and not by any Order of GECOM.
The respondents further argued that GECOM really did not need Section 22 to act to resolve the difficulties with which it was confronted as it is so empowered to do so even under Article 162 of the Constitution; and Section 22 merely supplements or provides one of many mechanisms for ensuring that there is compliance with Article 162.
On 27 April 2021, the Chief Justice handed down her ruling on Petition No. 88 in which she stated that Elections Commission acted in full compliance with the Constitution and the electoral laws in its conduct of the elections. She noted that neither Section 22 nor Order No. 60 is outside the realm of the Constitution and that the intent of the latter was to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count. The Chief Justice added that Section 22 is meant as an aid to the process to determine the election and is not a usurpation of the High Court’s jurisdiction under Article 163 of the Constitution:
Section 22 provides the parameters for its efficacy, and the power granted therein is not arbitrary. It includes sufficient mechanisms to establish that Parliament did not surrender or abdicate its powers. Thus, I hold that there was a lawful delegation of power as provided for in Section 22 so that GECOM could independently and properly control the election process.
The Chief Justice also noted that Section 22 authorises GECOM to make subsidiary legislation and that the power is only applicable when it appears to the Commission necessary or expedient for removing any difficulty. She rejected the argument that the power to modify the law can only be futuristic as this would not address any difficulties that would have arisen. The Chief Justice added that Order No. 60 did not confer any additional powers on GECOM but simply altered the procedure to arrive at the result that the Representation of the People Act requires.
Finally, the Chief Justice ordered that the Statements of Poll (SOPs) and the Statements of Recount (SORs) remain in the custody of the Court in the event that an appeal of her ruling is filed with the Court of Appeal. She had earlier ordered GECOM to hand over its SOPs and SORs to the Registrar of the Supreme Court for safe-keeping and not to destroy any other documents connected with to the elections until the petition is heard.
Hailing the Chief Justice ruling as ‘a bold, compelling and erudite analysis of the law’, former House Speaker Ralph Ramkarran asserted that:
When published, it will stand at the pinnacle of the Caribbean’s and Guyana’s already considerable jurisprudence on election law. It will become a permanent landmark to guide those everywhere who seek to uphold the integrity of elections, and to the legacy of a Chief Justice with many years of productive work ahead.
Appeal against Chief Justice ruling
At the conclusion of the Chief Justice’s ruling, the petitioners had signalled their intention to appeal the ruling. Last Monday, the Court of Appeal decided to hear the appeal, despite objections from lawyers for the respondent who contended that the appellants took 19 months before taking steps to have the hearing fast-tracked. Lawyers for the appellants, however, contended that ‘[t]here is no specific rule which exists under the Court of Appeal which says Mr. Bostwick and Ms. Thorne failed to comply with’. They stated that the fault was in the system since the appellants had not received the full decision and that there was only a draft transcript of the Chief Justice’s decision.
Justice Cummings-Edwards commented that ‘a party or an applicant should not be turned away from the seat of justice given the nature of this matter and, therefore, in the interest of justice we will grant the application, as filed or sought by Mr. Forde’. She added that whether the failure to conduct and prosecute the appeal was due to the fault of the lawyers for the appellants or the judicial administration, would have to be investigated. Justice Cummings-Edwards also noted the respondents’ view that the transcript reflects the full judgement.
The appellants contend that the Chief Justice erred in law when she ruled that Section 22 of the Elections Law (Amendment) Act 2000 and Order 60 made thereunder were not in violation of the Constitution:
The Learned Judge erred in law when she ruled that the Appellants did not produce evidence in the said Petition, in that, being a Petition which claimed that the said March 2 Elections was not lawfully conducted, there was no need for production of any evidence except what was presented, namely, the Declarations as per Regional Returning Officers’ 1 to 10 and the Recount.
They also argued that the Chief Justice erred in law when she ordered that the SOPs and SORs remain in the custody of the Registrar of the Supreme Court until all the cases have been completed.
The Court of Appeal has set 1 November 2022 for the submission of the status of the records including the full judgment by Chief Justice. It also gave the lawyers for the appellants seven days from October 3 to serve the notice of appeal on the other parties.
