Mar 31, 2020 News
The Full Court has stayed the proceeding filed against the elections recount until the determination of an appeal challenging the jurisdiction of Justice Franklyn Holder to hear the case. The Full Court comprised of Chief Justice (Ag) Roxane George and Justice Nareshwar Harnanan is set to rule on the point of jurisdiction at 11:00 am today.
The judges yesterday heard oral arguments from lawyers involved in the matter. Senior Counsel from Trinidad Douglas Mendes argued against the court’s jurisdiction to inquire into matters of the Guyana Elections Commission (GECOM) based on the application made by APNU- AFC candidate, Ulita Moore.
Mendes, who is among attorneys representing leader of the Opposition, Bharrat Jagdeo, had challenged the application by Moore to block the recount of votes cast in the elections on March 02, 2020.
The case filed before Justice Franklyn Holder was challenged on the grounds of jurisdiction. Justice Holder had previously granted interim injunction to Moore.
The injunction restrains the Chairman of GECOM and the Chief Elections Officer (CEO) from setting aside or varying the declarations already made by the 10 electoral districts with any other documents or declarations, until the hearing and determination of the judicial review of the application. Holder had ruled that the High Court has jurisdiction to hear the case. However, Jagdeo’s legal team appealed the ruling in Full court.
In his argument before the Full Court yesterday, Mendes relied on Section 140 of the Representation of the People Act that states that “no question whether as a function of the Elections Commission or any of its members has been performed validly or at all shall be enquired into in any court.” He stressed that the Court cannot be given jurisdiction in a case whic
h does not have one adding, “The question is, can the court entertain those submissions and can the court actually enquire into a decision of GECOM?”
He contended that the only method provided under the law is by way of Elections Petition, pointing out that “The only way the applicant can approach the Court is way of an election petition to say whether an act or omission which leads to the fraudulent result of the elections; in this case, the act would be the recount.”
The Senior Counsel held that at this juncture, the applicant does not have the right to interfere via the Court or otherwise with the operations of the Elections Commission.
Meanwhile, Moore‘s legal team, which was led by Grenadian Queen’s Counsel, Dr. Alexis Francis, and Dr. Keith Scotland, argued that the Court has supervisory role.
“I think we can all agree that the Court can deal with certain matters outside of an elections petition,” Dr. Scotland said. He referenced the case brought by Reaz Holladar against GECOM and Returning Officer for Region Four, Clairmont Mingo. Dr. Scotland noted in that case, the Court was asked to examine the issue of compliance, “Whether the Returning Officer had complied with the law as relates to the tabulation of the votes.”
In that vein, he argued that Moore has the right to approach the Court on the basis of whether an agreement between two political figures in the person of President and the Opposition Leader can order a recount of votes, a function that is solely conducted by GECOM.
Dr. Scotland stressed that the application before the Court is purely on this basis. The applicant is challenging any supposed right of the politicians to interfere in the affairs of GECOM.
Further, he said that, “Jagdeo waived his right to an appeal early in the matter. By filing application in the matter, parties from the other side submitted themselves to the jurisdiction of the court, only to later on challenge the very authority to which they submitted. We say that what they have done by participation, they have waived their right to raise the issue of jurisdiction,” he said.
But the Chief Justice did not quite agree with that argument. She instead noted that even Justice Holder agreed that the issue is a “live one”.
Justice Holder had granted an interim injunction, which restrains GECOM from permitting or authorising “any person or persons to any agreement between the President of Guyana and the leader of the determination of the judicial review application”.
The interim decision also restrains GECOM’s CEO from submitting any report of the total votes cast for each List of Candidates pursuant to Section 96 (1) and (2) of the Representation of the People Act, save and except the votes counted and the information furnished by the Returning Officer under Section 84 (1) of the Representation of the People Act, until the hearing and determination of the judicial review.
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