“The charge against the defendants are frivolous and vexatious; it lacks basic human merits,” said Chief Magistrate Ann McLennan, yesterday.
Immediately she dismissed arguments by Special Prosecutor, attorney-at-law Sanjeev Datadin, who last Tuesday filed a private criminal charge on behalf of Civil Engineer and businessman, Marcel Gaskin, against GECOM Chairman and the three Coalition Commissioners, accusing them of conspiring to delay elections.
The three commissioners are Charles Corbin, Vincent Alexander and Desmond Trotman and the Chairman, Retired Justice James Patterson. The defendants were represented by Senior Counsel Neil Boston.
However, yesterday when the matter was called in the Chief Magistrate’s courtroom, only Patterson and Trotman were present due to the fact that a summons was never issued for Corbin and Alexander.
The charge against the four accused stated that during the period December 22, 2018 to March 9, 2019, they conspired to breach Article 106 of the Constitution of Guyana which provided for the holding of General Elections in Guyana within three months from the 21st December 2018, when the No-confidence Motion was passed in the National Assembly.
However the Chief Magistrate did not read the charge to the defendants.
Yesterday when the matter was called, Boston in his arguments on the validity of the charge said that the court has no jurisdiction to entertain it.
The charge which he described as “nuisance” and the issue of jurisdiction, he said, will go in two different directions
The first issue of jurisdiction is that there is exclusionary clause in the Representation of the People’s Act 103. The clause excludes the jurisdiction of the Magistrates’ Court.
Every court before it embarks on a hearing must be satisfied with itself that it has jurisdiction to hear the matter.
And that has been the law since 1939 in Guyana, he added.
Section 140 of the Elections Commission Proceeding Representation of the Peoples Act reads: “Except to the extent that jurisdiction in that behalf has been conferred, and the exercise there of is required, by the Constitution or any law made under article 3 there of (which provides for the determination by the Supreme Court of Judicature of questions as to membership of the National Assembly and elections there to) and save as here in before provided to the contrary, no question whether any function of the Elections Commission or of any of its members has been performed validly or at all shall be enquired into any court.”
He added that Article 161 of the Constitution states clearly “(1) There shall be an Elections Commission consisting of a Chairman, who shall be a full¬time Chairman and shall not engage in any other form of employment, and such other members as may be appointed in accordance with the provisions of this article.
Article 162 (1) (a) says, “The Elections Commission shall have such functions connected with or relating to the registration of electors or the conduct of elections as are conferred upon it by or under this Constitution or, subject thereto, any Act of Parliament; and, subject to the provisions of this Constitution, the Commission—(a)shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and(b)shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this 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.”
“This is the function, not what Gaskins feels,” Boston argued.
He added that the charge does not disclose an offence known to the laws of Guyana and by virtue of that fact, it should be struck out or dismissed and the four accused be discharged.
About 35 minutes into the court hearing, Patterson who was standing next to the prisoner’s dock indicated to his lawyer that he would like to sit. Hence, the lawyer asked permission for both his clients to sit and such was granted by the Magistrate.
Datadin in response to the lawyer’s arguments stated that the defendants indeed breached the Constitution and told the court that the offence is known to law and the court should proceed with a trial.
The Special Prosecutor went on to tell the court that it is not a matter of the validity of anything, since at this stage the Prosecution does not intend to validate anything and conspiracy charges date back to the 1960s, when such charges were laid against individuals who breached the Constitution.
On this basis, he contended that the quartet should be held accountable for the crime.
Datadin added that as it relates to Articles 140 (1) of the Representation of the People Act, it states that, “Except to the extent that jurisdiction in that behalf has been conferred, and the exercise thereof is required, by the Constitution or any law made under article 3 thereof (which provides for the determination by the Supreme Court of Judicature of questions as to membership of the National Assembly and elections thereto) and save as herein before provided to the contrary, no question whether any function of the Elections Commission or of any of its members has been performed validly or at all shall be enquired into in any court.”
The Magistrate after going through the arguments of both sides told the court that she is of the opinion that the charge does not create an offence and the charge appears to be frivolous since March 21, 2019 election deadline, is still approaching.
She added, “I heard arguments made on behalf of the prosecution and the defence counsel. The court sees no need to consider any further arguments since the court is of the opinion that the charge is frivolous and vexatious which lacks basic human merits.”
Hence, she dismissed the matter against the four defendants.
On February 19, the Commission voted on three motions in the name of A Partnership for National Unity (APNU) Commissioner, Charles Corbin.
The first motion considered was one calling for President David Granger to be informed that GECOM cannot be ready for elections within the 90 days that the Constitution prescribes in the event that a motion of no-confidence is passed against the government.
Second, the Commission considered a motion that resolved to let it be registered that GECOM is not financially able to hold elections in the short term.
Third, the Commission considered a motion that gave direction to the GECOM Secretariat for it to continue with its work programme for 2019, as it was before the passage of the no-confidence motion. The third motion would see GECOM preparing for house-to house registration as was called for by APNU and the Alliance for Change (AFC).
In this period, until a contradictory decision is made, GECOM will not act in accordance with any work programme that responds to a call for elections in the short term.
APNU commissioners voted in favour of the motions and so did Patterson.
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