Jul 02, 2020 News
By Rehanna Ramsay
After a single marathon session of oral submissions, yesterday, the Caribbean Court of Justice (CCJ) has scheduled its decision in the Guyana recount case for next Wednesday.
Opening the arguments, Trinidadian Senior Counsel, Douglas Mendes, in his representation of the People Progressive Party Civic, (PPP/C ), asked the Court to reject every contention that the decision rendered by the Court of Appeal in the Guyana election recount case is final.
Mendes sought to convince a five-member bench at the Regional Court inclusive of President of the Court Justice Adrian Saunders, Justice Jacob Wit, Justice Maureen Rajnauth-Lee, Justice Peter Jamadar and Justice Denys Barrow, of their inherent jurisdiction to hear and determine the issues outlined in the election recount appeal.
The matter which concerns the outcome of Guyana’s closely watched Regional and General Election is derived from a complaint by a Sophia, Georgetown resident Elsyn David. David had approached the Court of Appeal in a Notice of Motion (NoM) questioning the credibility of the CARICOM-supervised GECOM recount which placed the PPP/C Opposition 15,000 votes ahead of the incumbent A Partnership for National Unity+Alliance For Change (APNU+AFC) coalition.
She sought the Court ‘s interpretation on a number issues , chief of which was whether the words “more votes cast“ in Article 177(2)(b) of the Constitution, when taking Order Number 60 of 2020 (establishing the Recount) should be interpreted to mean “more valid votes”.
The Appeal Court had rendered a decision answering a single question posed by the applicant. The decision under Article 177(4) which purports the Court of Appeal‘s judgment is final.
The question of the Court’s exclusive and final jurisdiction as it regards David’s application has been put to the CCJ in an appeal filed by the PPP/C and several adjoining small political parties who participated in the March 2, polls.
During the omnibus hearing of the case held via zoom conference at the CCJ yesterday, Mendes tackled several issues raised as a result of his application.
The lawyer was firm in his stance that the jurisdiction of the Appeal Court under Article 177(4) was prematurely and wrongfully invoked by the applicant who sought the Court’s relief to questions of the validity of the elections.
He stressed that the Court in the exercise of its limited jurisdiction under that section, through the mistaken understanding or application of the law, may encroach or abrogate other parts of the Constitution and in particular exercise a jurisdiction vested exclusively in the High Court.
“Your Honours,” Mendes argued, “the question raised by the applicant falls outside the ambit of Article I77 (4). That Article deals with the narrow and basic issue of the qualifications of an elected President ‘and gives the Court of Appeal‘s finality in dealing with that matter.”
David, he said, was in essence questioning the validity of the elections based solely on allegations of discrepancies and anomalies made by APNU-AFC Party Agent, Joseph Harmon.
“If you look at the application there is a common theme – that the Guyana Election Commission was supposed to determine a final credible count or the credibility of the elections in accordance with Order Number 60 for 2020 but it did not do so,” Mendes said, countering that the issues raised by the applicant hold no novelty.
“These are occurrences,” he noted, “which happen all over the world, people complain about the credibility of an election elsewhere. These
circumstances are not special to Guyana but I submit to this honourable Court that there is a way in dealing with such matters and it is by way of an elections court which is in the High Court.”
The Attorney held therefore that the decision which was arrived at was ultra vires the powers of the Appeal Court under Article 177(4).
In response to a question by Justice Jamadar regarding which arm of the State the elections commission falls, the lawyer noted GECOM was a functionary of the Executive, and could not adopt the powers of the Judiciary, specifically the High Court and conduct investigations into the complaints raised by David.
Under these circumstances, he noted that the Appeal Court erred when it failed to give effect to the separation of powers doctrine by finding that the meaning of Article 177(2)(b) of Constitution was in effect amended by Order Number 60 of GECOM. The lawyer noted that by their interpretation, the Appeal Court in effect gave its blessing that Article 177 (2) of the Constitution could be amended by a subsidiary legislation. He asserted that for the Court to interpret of meaning of the Constitution which states “more votes are cast” should mean “more ‘valid’ votes are cast” in determining the winner of the elections is wholly erroneous and must be rejected.
Attorney, John Jeremie, who followed Mendes in his presentation to the CCJ sought several ways to discredit those arguments. Jeremie, also a Trinidadian Senior Counsel, is representing David in the case. He strongly opposed any notion that the Appeal Court’s decision was not final, citing the exclusive jurisdiction of the Appeal Court under Article 177(4). Jeremie, however could not provide the Court, with any precedent in
which the validity of an election was determined before a President was elected.
Confronted with questions from the Court’s President to furnish the case law references, Jeremie fumbled to provide a response.
“Have you been able,” Justice Saunders asked,” to cite any case where a question as to the validity of the election of some governmental official was heard and determined by the Courts, before the official was elected?”
Jeremie responded, after a significant pause, “My Lord, I have not been able to find such a case.”
As he went on with his submissions as it regards the Court of Appeal’s interpretation of Article 177(b) of the Constitution in the context of the recount Order by GECOM, he was asked yet another question by the CCJ’s President: “Is it that you are saying, Mr. Jeremie, that the Constitution of Guyana can be influenced by or altered by a subsidiary legislation that came into being many years after the Constitution came into effect? Does that sound right to you?”
Jeremie responded in the negative, offering that this was somewhat the reasoning of the Court in interpreting the order by GECOM.
As he continued his arguments in support of the finality of the Appeal Court’s decision in the matter, Justice Witt posed another question, one he prefaced by saying that it would appeal to the logic behind Jeremie’s argument: “Suppose the Court of Appeal made a completely absurd decision under Article 177(4), are you saying that decision is final and should not be appealed?”
To this, the lawyer pointed out that the Constitution is clear that functions of GECOM are subjected to the provisions of the Constitution, and that in his view GECOM has some legislative powers.
Justin Simon, Queen’s Counsel representing the Attorney General, Basil Williams S.C, met with similar questions from Judges of the Court.
He dealt with the issue of jurisdiction.
“I think that we can all agree that the CCJ is not established by the Constitution of Guyana which we all agree is the Supreme Law… the powers of the CCJ was established by an act of Parliament,” he said.
He held too that Article 177(4) gives the Appeal Court jurisdiction to determine the validity of the qualifications of an elected President. His assertion met with questions from Justice Saunders who asked Simon “Who is the question of the validity of the elected President for? If we don’t know the identity of the elected President how then can we address the issues of qualification for a person that we don’t know?”
“I don’t think that that is the proper way to look at it,“ Simon retorted.
He explained that, to his thinking, the article does not raise a question about a person but it is towards assisting the process of the elections of a President.
In his submission, Williams further added to Simon’s contention that the Appeal Court‘s decision is final. The AG stressed that the CCJ does not have jurisdiction to hear the matter. He cited the several cases including a Guyana case involving Eusi Kwayana. Williams recommended that based on that decision rendered in the Kwayana case that the CCJ should dismiss the appeal emanating from the Guyana Court of Appeal.
He held that CCJ should not interfere with a judgment proffered by Guyana’s Court of Appeal as the nation’s apex court. He said that he is hopeful that the CCJ doesn’t enlarge its scope in the matter as it did in a number of other cases.
“We reserved this narrow issue of the Guyana elections for our Appeal Court. I don’t believe that the Guyanese people would want matters of our elections to go beyond our Court of Appeal,” he added
Towards the end of the submission, Attorney-at-law Reginald Armour S.C., who is representing Joseph Harmon in the matter, Section 163 of the Guyana Constitution, argued, inter alia, that the High Court shall have exclusive jurisdiction to determine any question regarding the qualification of any person to be elected as a member of the National Assembly.
Also, he offered, Article 177 (4) which says that the Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends upon the qualification of any person for election, or the interpretation of this Constitution, and any decision of that Court shall be final.
The lawyer’s contention is that litigation utilising Article 163 can ultimately, and/or potentially lead to recourse to the CCJ, should an elections petition be filed in the High Court and subsequently appealed, while article 177 restricts such a recourse.
Justice Jamadar, however, questioned the retrospective impact that could be introduced if an invalidation of votes is done and the figures are different from those that may be generated under 163, which implies such a challenge be formulated via an elections petition.
Senior Counsel Ralph Ramkarran in his representation of A New and United Guyana (ANUG), The New Movement (TNM), and the Liberty and Justice Party (LJP) supported Mendes’ argument.
He noted that the ruling of the Court of Appeal’s interpretation of the Constitution that more votes means valid votes is innocuous since “more votes cast” in the context of the constitution “can only mean more valid votes.”
Ramkarran asked the court to reject Lowenfield’s decision to act on the interpretation of the Appeal Court, after the Court had stayed its decision. He asked that the report prepared by Lowenfield pursuant to the ruling of the Appeal Court be set aside and declared null and void. The lawyer cited the report of the recount by CARICOM and the actions of GECOM which followed as part of his arguments before the CCJ.
He stressed too on the responsibility and functions of the CEO based on the Representation of the People Act. Ramkarran held that Lowenfield, based on the legal provisions, is subject to the instructions of the Commission chaired by Justice Claudette Singh.
He asked the Court to use its authority to bring relief to the more than four months of elections -related torment the people of Guyana. Meanwhile, Attorney -at- law Timothy Jonas who also appeared on behalf of the three parties, said that the CCJ Act gives the Court Jurisdiction to act as in the case of the Court of Appeal.
He noted that the issue of validity of votes does not lie within the ambit of the Appeal court. The lawyer noted that the Representation of the People Act outlined issues to consider when determining valid votes. He stressed that Court of Appeal does not have that function nor does the Chief Elections Officer.
The final decision of the case will be given at 3.00 pm, next Wednesday, July 8.
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