The Full Court has thrown out the case filed by APNU – AFC candidate Ulita Moore to block the nationwide recount of votes cast at the March 2, 2020 Regional and General elections .
In a unanimous ruling yesterday, the Full Court, which comprised of Chief Justice (Ag) Roxanne George and Justice Narweshar Harnanan, ruled that the High Court does not have the jurisdiction to hear the application filed by Moore for an injunction to block the Guyana Elections Commission (GECOM) from moving forward with plans to have a nationwide recount.
Moore had asked the court to inquire into the constitutionality of a decision made by GECOM to have a high level CARICOM team supervise a national recount of the votes cast in the March 2 elections.
The Full Court yesterday discarded the decision by Justice Franklyn Holder in which he ruled that the High Court has jurisdiction to hear an application, despite objections from the opposing parties.
In the same vein, the Full Court discharged the interim injunctions granted by Holder and dismissed the substantive case before him.
The Court also denied Moore’s attorneys a stay of their decision and also denied leave to file an appeal on grounds of an unlikely probability of success at the level of the Court Of Appeal. Moore‘s legal team nonetheless noted they reserve the right to appeal and will take the legal course of redress.
In their ruling yesterday, the Full Court upheld the submissions made by lawyers for the Leader of the Opposition, Bharrat Jagdeo.
Trinidadian Senior Counsel Douglas Mendes and his team had argued that Moore’s application should have been in an election’s petition.
ring the ruling, Chief Justice Roxanne George noted that any meeting held by GECOM or its commissioners falls under Section 140 of the Representation of the People Act.
She added that 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 CJ noted that Section 140 of the Representation of the People Act read: “(1)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 hereinbefore 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.”
It further states: (2) No evidence of any deliberations of the Elections Commission or communications between members of the Commission regarding its business shall be admissible in any court.
She therefore stressed that the arguments raised by Moore‘s legal team do not give the Court the right to enquire into the affairs of GECOM.
The Judge noted inter alia that while the applicant has the right to seek legal recourse, her method of approaching the High Court is incorrect.
“The questions raised by the applicant is one for an elections petition and not for judicial review”
She noted that law in those circumstances only grants the court permission to intervene and exercise supervisory powers by way of an elections petition.
Added to that, Justice George cited Article 162(1) (b) of the Constitution which gives GECOM powers to ensure the necessary actions are taken to ensure credible elections.
Article 162(1) (b) of the Constitution says that GECOM shall issue such instructions and take such action as appear to if necessary and 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.”
Jagdeo‘s legal team had been arguing vehemently in favour of the recount.
Moore on the other hand had asked the Court to stop any recount by GECOM and its principals. The APNU – AFC candidate requested that GECOM proceed with declarations of Mingo’s current tabulation. Jagdeo ‘s lawyers had argued that the Court does not have jurisdiction to enquire into any decision or act by GECOM.
In his oral presentation on Monday, 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 which 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?”
The lawyer had 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 by 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.”
Meanwhile, Moore‘s legal team, which was led by Grenadian Queen’s Counsel, Dr. Alexis Francis, and Dr. Keith Scotland argued that the Court does have supervisory powers.
“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 held 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.
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