Why was there late service?

Oct 24, 2022 Features / Columnists, Peeping Tom

Kaieteur News – There is a false assumption which is being made in respect to the recent decision of the Caribbean Court of Justice (CCJ) as to whether Guyana’s Court of Appeal (COA) has jurisdiction to hear the appeal into the dismissed elections petition.

The assumption which is being made is that the recent decision of the CJJ has deprived the Opposition of the opportunity to present the evidence to prove election irregularities. This is a false assumption because even if the CCJ had ruled that the COA had jurisdiction, this does not mean that the COA would have overruled Justice George’s decision.

Justice George has argued persuasively and cited sources in support of her decision to dismiss the petition on the grounds of late service. It is a stretch of logic for those who are now criticizing the CCJ – without providing grounds – to assume that the COA would have overruled Justice George.  The fundamental affirmation made in the recent CCJ case was that the High Court has a special and exclusive jurisdiction, provided for in law, in respect to elections petition.  But this affirmation should not have come as a surprise.

In the decision of Mohamed Irfaan Ali and Bharrat Jagdeo V. Eslyn David et al of July 8^th 2020, the CCJ had affirmed that it was the High Court which has exclusive jurisdiction over elections petition. The CJJ had held that the COA determines questions as to the validity of an election only in respect to the qualification of any person to be elected, or the interpretation of the Constitution..

The CJJ in that case went to on to emphasize that “it would be an entirely different matter if no question as to the validity of an election of a President was before the Court of Appeal, or, if a question as to the validity of an election of a President was before that court, that question did not depend upon the qualification of any person for election or upon interpretation of the Constitution. In either case, the Court of Appeal would be in error in assuming jurisdiction to hear and determine that question. “

There are only three grounds upon which the COA could have claimed jurisdiction to hear an appeal of the dismissal of the elections petition and none of these grounds could have been successfully advanced in the recent appeal before the CCJ. The CCJ has presented a well-argued decision. It may not have been a unanimous decision but the decision strengthens our understanding of Guyana elections laws.  Those who do not agree with the recent CCJ decision are guilty, in the main, of not providing legal arguments as to why they are disposed towards disagreement.  It is not even clear whether some of them have read the full decision which is over 80 pages long, or whether they understood what they have read.

There is nothing unusual or inordinate about elections petition being dismissed on procedural grounds. As Guyana’s Attorney General had explained in a comment to the media, ““If one is to go back to the challenge to the 1968 election. That petition was dismissed on technical grounds. The 1973 election was challenged by an election petition. That also was dismissed on a procedural, preliminary ground. The 1985 elections were challenged by an election petition. That was dismissed on the ground of, among other things, non-service.”

Instead out spouting about irregularities and attacking the CCJ, the critics should address their minds as to why timely service of the petition was not made on David Granger. Why was the petition not served on the former President within the stipulated period of five days after filing, as is required by the laws? How is it that the other parties to the petition received their petition on time but David Granger was not properly served? Should someone not be held accountable for this mistake?   Why blame the CCJ and excuse the failure to effect proper service.  The Government has launched a Commission of Inquiry into the elections. Seeing that its election petition has now been effectively dismissed, it now has the opportunity to present the evidence at its disposal including its Statements of Polls, which it said showed that it had won the elections. It now also has the opportunity to present the evidence of dead and migrant persons voting.  Strangely, the Opposition is not coming forth with such evidence. It appears as if wants GECOM to undertake a fishing expedition to produce the evidence. But is it not a maxim in law that he who asserts must prove?

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)