– throws out Appeal Court’s decision
– Lowenfield’s cannot disenfranchise thousands of voters
– GECOM to meet 1:30pm today
By Rehanna Ramsay
The Caribbean Court of Justice (CCJ), in a unanimous decision yesterday, rendered the decision of the Guyana Court of Appeal in the elections recount case invalid.
The judgment was wrought by a five-member panel of judges inclusive of the Court’s President Justice Adrian Saunders, Justice Jacob Wit, Justice Maureen Rajnauth-Lee, Justice Peter Jamadar and Justice Denys Barrow.
As a consequence, the Guyana Elections Commission (GECOM) is expected to meet 1:30 today to deliberate on matters related to the results of the March 2, 2020 Regional and General Elections.
In a delivery of the decision lasting less than an hour, Justice Saunders told lawyers involved in the case that the majority decision handed down by the Appeal Court was made without jurisdiction and should therefore be set aside along with the Chief Elections Officer Keith Lowenfield’s report that was based on it.
He said that it is for, “GECOM to ensure that the election results are swiftly declared in accordance with the Laws of Guyana.”
Added to that, he stated that it “is now for GECOM to ensure that the CEO submits a report in accordance with its directive of 16th of June in order to proceed along a path directed by the laws of Guyana.”
That directive was from GECOM Chairperson Rtd. Justice Claudette Singh to submit the report in accordance with the elections recount results, which placed the PPP/C Opposition 15,000 votes ahead of the incumbent A Partnership for National Unity+Alliance For Change (APNU+AFC) coalition.
Before Lowenfield complied with the directive, Sophia, Georgetown resident Eslyn David had approached the Court of Appeal in a Notice of Motion (NoM) questioning the credibility of the CARICOM-supervised GECOM recount
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.
Despite a three-day stay in place, GECOM’s Chief Elections Officer (CEO) of Keith Lowenfield submitted, one day after the decision, a report to the commission invalidating some 115,000 votes in favour of the A Partnership for National Unity+ Alliance For Change (APNU+AFC) regime.
An appeal filed to the CCJ by the PPP/C ‘s Presidential Candidate Irfaan Ali and General Secretary, Bharrat Jagdeo, along with several adjoining small political parties who participated in the March 2, polls questioned of the Court’s exclusive and final jurisdiction as it regards David’s application.
In the ruling yesterday, the CCJ President said that, based on the appeal, the Court determined two central questions: whether it has jurisdiction to hear and determine this matter; and, if so, whether the Court of Appeal rightly assumed and/or acted within the jurisdiction conferred by Article 177 (4) of the Constitution.
According to the Judge, among the parties’ submissions, there were two clear approaches: those supporting the Court of Appeal’s assumption of jurisdiction under Article 177(4), thus making its decision final and unappealable to the CCJ; and those submitting that Article 177(4) was not triggered by Ms David’s Application and calling for it to be set aside.
Given the question of jurisdiction raised by the parties involved, Justice Saunders said that the Court was tasked with first determining that issue based on the rule of law, applicable, constitutional, and legislative provisions crafted by the Guyana Parliament.
In this regard, he expressed that the CCJ recognized that Article 123(4) of the Constitution gives Parliament the power to make the CCJ the final court of appeal for Guyana.
According to Saunders under this authority, the Caribbean Court of Justice Act, Chapter 3:07 (“the CCJ Act”) was enacted, rendering the CCJ, the apex court for Guyana.
He asserted that, “The CCJ Act, which implemented the Agreement Establishing the CCJ and gave it force in Guyana’s domestic law, must guide the question of the CCJ’s jurisdiction.”
Citing a Barbadian case, the CCJ President stressed that the Court determined that the CCJ had jurisdiction to entertain Applications for Special Leave to appeal from any decision of the Court of Appeal in any civil matter.
He added that “This power was to be juxtaposed, however, against Section 4(3) of the CCJ Act which provides that the court has no jurisdiction to hear matters from the Court of Appeal which were declared to be final by any law.”
Justice Saunders held therefore that while the Court confirmed that Article 177(4) in the Guyana Constitution is such a law – Article 177(4) is also a carve-out of the exclusive jurisdiction over the issue of the validity of elections.
He said therefore that Article 177(4) should be strictly and narrowly construed.
Saunders said, “There was no doubt, that in instances where the Court of Appeal hears a question concerning the validity of an election of a President where the question depends on that person’s qualifications or the interpretation of the Constitution, that decision would be final and unappealable to the CCJ.
He stressed nonetheless that, “If no such question arose, however, of if the validity of the election did not depend on a question of the qualification of the person or the interpretation of the Constitution, then the Court of Appeal would not have jurisdiction.”
Saunders noted that David’s case did not deal with such matters.
“In such cases,” he continued, “questions about the validity of any elections must be referred to the High Court, under Article 163. And once the matter commenced in the High Court, it was appealable right up to this Court as the final Court of Appeal.”
As such, the Judge expressed that the CCJ determined and re-affirmed its duty as Guyana’s final court of appeal to ensure adherence to the Constitution.
In all the circumstances, he noted that the CCJ given the constitutional implications and the public importance of this case, granted special leave to Ali and Jagdeo to argue the appeal.
DECISION NOT FINAL
In addressing the merits of the appeal, the Judge said that Court that is exclusive jurisdiction of the High Court under Article 163, to determine, among other matters, any question in relation to whether an election has been lawfully conducted, was unaffected by GECOM’s Recount Order 60 .
He explained that “Similarly unaffected was the National Assembly (Validity of Elections) Act (“the Validity Act”) which provides the method of questioning the validity of an election through the filing of an election petition.
The Validity Act set out that such a petition must be presented within 28 days of the publishing of the election results and that the High Court had the power even to order a fresh election in whole or in part.”
Saunders continued that “Article 163 provides a constitutionally mandated and evidence based open justice process under the exclusive jurisdiction of the High Court, with the right of appeal, if necessary, to the Court of Appeal and ultimately to this Court.
He noted that the irregularities complained of by APNU+AFC’s Mr. Joseph Harmon and alluded to by the CEO, were required to be addressed under the jurisdiction conferred by Article 163, by an election petition filed in the High Court.”
For all these reasons, Justice Saunders stressed that the CCJ adjudged that the provisions of Article 177(4) were not triggered by Ms. David’s Application to the Court of Appeal and the finality clause was therefore inoperable.
“Article 177(4) only affords jurisdiction to the Court of Appeal,” he reasoned, “if the question raised as to the validity of an election of a President depends upon the qualification of any person for election or the interpretation of the Constitution. It is evident from the nature of Ms. David’s complaints and the issues she placed before the Court of Appeal that the question(s) raised by her did not depend on the qualification of any person for election or on the interpretation of the Constitution.”
According to the Saunders, David’s complaint was really about impact of Order 60 and the conduct of GECOM.
“It follows that, under the laws of Guyana, this Court had jurisdiction to hear and determine the Application by Ali and Jagdeo to set aside the decision of the Court of Appeal. That decision was made without jurisdiction. It was therefore not final and is of no effect,” the judge said.
Additionally, in his ruling, the CCJ Judge alluded to the June 2020 report of the Chief Elections Officer, which he based on the Court of Appeal’s decision and invalidated votes, he determined were invalid.
By the unnecessary insertion of the word “valid”, the Judge said that the Court of Appeal impliedly invited the CEO to engage unilaterally in an unlawful validation exercise.
“This trespassed on the exclusive jurisdiction of the High Court established by Article 163. It was inconsistent with the constitutional framework for the CEO or GECOM to disenfranchise thousands of electors in a seemingly non transparent and arbitrary manner, without the due processes established in Article 163 and the Validation Act,” the Judge stressed.
According to Saunders, the concept of “valid votes” is well known to the legislative framework governing the electoral process. He noted that the phrase appears several times in the Representation of the People Act.
In this context, Justice Saunders said that the Chief Election Officer to calculate “the total number of valid votes of electors which have been cast for each list of candidates.”
He explained that, “the determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of the duly appointed candidates and counting agents of contesting parties.”
According to Saunders, it is after such invalid votes are weeded out that the remaining “valid” votes count towards a determination of not only the members of the National Assembly but incidentally as well, the various listed Presidential candidates.
He emphasized that, “If the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond this transparent validation exercise, say because of some fundamental irregularity such as those alleged by Mr. Harmon, then that would be a matter that must be pursued through Article 163 after the elections have been concluded.”
Further, the Judge said that unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.
Additionally, the CCJ Judge determined that GECOM Chairperson Justice Claudette Singh was right to state that GECOM lacked the legislative authority and the machinery to embark upon a determination of irregularities outlined in Lowenfield’s report.
The GECOM Chairperson conferred with the Commissioners and announced publicly that some of the allegations set out were serious, but said ultimately that the Commission did not have the machinery to adjudicate them.
“The Chairperson pointed out that the Constitution had vested in the High Court an exclusive jurisdiction to determine the legality of an election and the Commission could not arrogate onto itself the power to annul elections,” Saunders explained.
The CCJ Judge held therefore that Lowenfield’s June 23 report is also invalid and of no effect.
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