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AG maintains GECOM must act on advice of the CEO

AG maintains GECOM must act on advice of the CEO

ATTORNEY-General Basil Williams on Saturday maintained that the results of the 2020 General and Regional Elections can only be declared by the Guyana Elections Commission (GECOM), on the sole advice of Chief Elections Officer (CEO) Keith Lowenfield.

The Chief Elections Officer, in his latest Elections Report, had advised the Elections Commission that the A Partnership for National Unity + Alliance For Change (APNU+AFC) won the March 2, 2020 elections, based on the declarations made by the 10 Returning Officers in March, but that did not sit well with Chairman of the Elections Commission, Justice (Ret’d) Claudette Singh. The GECOM Chair has since set aside the March Declarations on July 13, and ordered the Chief Elections Officer to produce an Elections Report reflective of the data generated during the National Recount.

It was that decision of hers that sparked another round of judicial actions. Having lost at the High Court, Tucville, Georgetown voter Misenga Jones turned to the Court of Appeal, in the hope of having the Recount Order, Order Number 60, invalidated.

When the case was called before Justices of Appeal Dawn Gregory and Rishi Persaud, and High Court Judge Priya Beharry in the Court of Appeal on Saturday, the Attorney-General, the fourth-named respondent in the matter, said that Chief Justice (ag) Roxane George-Wiltshire misinterpreted the provisions of Article 177 (2) (b) of the Constitution.

The Attorney-General told the Appellate Court that the Chief Justice erred in law when she ruled that the Chief Elections Officer, in compiling the Elections Report, is subject to the control and direction of the Elections Commission.

In rejecting the ruling of the High Court that the Chief Elections Officer is not a constitutional officer, Williams asked the judges to have a closer look at Article 177 (2) (b).
That article states, “…Where (b) there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President, and shall be so declared by the Chairman of the Elections Commission, acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.”

The Attorney-General submitted that Article 177 (2) (b) is “unambiguous”, and has three mandatory requirements, namely: The Presidential Candidate with the most votes be deemed to be elected; the Chairman of GECOM shall declare the Presidential Candidate to be elected President, and thirdly, the declaration is based on the advice of the Chief Elections Officer.

“Nothing in Article 177 (2) (b) speaks to the Chief Elections Officer being directed by the Chairman or the Commission in tendering his advice, or the Chairman making a declaration based on anything other than the advice of the CEO,” the Attorney-General argued.

In support of his position, he drew reference to the book, ‘Understanding Statutes’ and the case of Vandertoll v Kentucky. He submitted that like “shall”, the words “acting only in accordance” must be given their plain meaning in order to arrive at the true intent of the legislature.

“The role of the CEO, under the Constitution,” he submitted, “must be seen as separate from his day-to-day administrative functions, where he is under the direction of the Commission.” “The promulgation of this specific advisory role to the level of the Constitution must not be viewed as ordinary, and taken lightly, as elections are to be seen as being free of interference, even the interference of the Commission which is made up of political Commissioners. Accordingly, the words ‘acting only in accordance with the advice of the Chief Elections Officer’ are deliberate and clear and has to be given its true meaning,” the Attorney-General argued.
To bolster his argument, he also alluded to the Law Society of Botswana and another v the President and others (2017), where the principle was supported.

A MERE FORMALITY

Further, he submitted that the Chairman’s position is merely formal, and simply to follow the advice given and act on it.
The Attorney-General warned that there is a “danger” of reading words into the Constitution, as he shut down the contention by the High Court that Article 177 (2) (b) allows for anyone within GECOM to advice the Elections Commission. The Court, he posited, must frown on such insertion in the Constitution.
Arguing that the Elections Commission does not have a discretion, the Attorney-General said Article 177 (2) (b), in unambiguous language, clearly stated that GECOM must act only on the advice of the Chief Elections Officer. “…There is no other option,” he posited.

Alluding to the decision of the Caribbean Court of Justice (CCJ) in the case, Irfaan Ali and Bharrat Jagdeo v Eslyn David and Others, the Attorney- General said the apex court, at paragraph 43 of its judgment, said: “Article 177 (2) (b) always said what it meant, and meant what it said.”

Against that background, he said from all indications, the Chairman of the Elections Commission, by declining to declare the results of the elections based on the Chief Elections Officer’s advice, has failed to execute her constitutional mandate. Such, he posited, is an abdication of her constitutional duty.

In instructing the Chief Elections Officer to compile the Elections Report using data from the National Recount, Justice Singh had relied on Section 18 of the Election Laws (Amendment) Act, but the Attorney-General submitted to the Court that Section 18 is inherently flawed. He reminded that the Constitution is supreme, and cannot be overshadowed by an Act of Parliament.

It is contention that the 10 Declarations can only be set aside by an Elections Court, and any attempt by GECOM to invalidate them, would be illegal. “Whether Mr. Lowenfield’s Report is contrary to Law or lack in legitimacy or [is] unconstitutional, [that] cannot be determined by the GECOM; that will have to go to an elections petition court. That is a clear fact in relation to this matter,” the Attorney-General argued. The Attorney-General appeared in association with Attorney Maxwell Edwards. The Appeal Court will hand down its decision in the case on Thursday, July 30.

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