BY: DR VISHNU BISRAM
In my experience working before the Bronx Supreme Court and my studies on American constitutional law as well as international law, approaching the court to re-litigate issues already ruled upon (especially by the CCJ) is tantamount to abuse of judicial proceedings. What has been happening in Guyana on the election matter is a deliberate abuse of the court to hold up the declaration of the election results. GECOM should not delay the process any more and should proceed with a declaration unless so instructed by the COA or CCJ.
The highest court of the land, CCJ, made a decisive ruling urging GECOM to proceed and make a declaration of the results of the election. Instead of making the declaration, GECOM allows the defeated party time to file court proceedings challenging the method under which the declaration would be made and the final figures of the results of the election which were already decided by a recount and the CCJ itself when it said only the recount numbers can be used to make a declaration. The CEO can’t use his own numbers. He is not a law unto himself. He has no constitutional powers. He is a statutory officer of GECOM who is his boss. He must effect the instruction of GECOM or be terminated for insubordination.
In the court process, an aggrieved party has a right to file a court petition on the election result. And there must be due process – meaning the court must hear the case and pronounce on it. While the matter is being litigated in court, it is respectful that the status quo holds even though the court does not put an injunction staying the status quo (meaning not declaring the election result).
After the court disposes of the petition, GECOM is free to make a declaration. GECOM cannot assume an appeal would be filed and delay the declaration. The appellant announced it would file an appeal after her petition was dismissed by the Chief Justice. GECOM should schedule a meeting today and proceed with the finality of the election. If an appeal is filed and the court of appeal finds sufficient reasons, it could grant a stay on the declaration. But the chance of success for an appeal is nil.
It would be recalled that last month, the Court of Appeal grantED a stay of its judgment for three days. Yet GECOM CEO proceeded to submit his report for the final declaration of results of the election. He did so even when the opposition parties announced that they would approach the CCJ to challenge the COA ruling. The CCJ appeal was filed early in the morning of June 23 and yet at noon, the CEO submitted his report in defiance of the COA stay and the appeal filed at the CCJ. The official stay came later in the after. There is no reason, therefore, why GECOM can’t meet and proceed with the declaration until such time that an appeal is filed and a stay order is granted by the COA.
It is interesting to note that the petitioner did not seek leave to appeal the CJ’s ruling. The CJ dismissed all of the orders sought by the petitioner. The CJ would have denied a request to seek leave to appeal because the chance of success is zero. Instead, the petitioner sought the good grace of GECOM Chair to hold her hand on a declaration. Since the CJ dismissed the petition, it is unlikely to succeed at the COA. No Judge would risk granting leave to appeal. Such a leave would be dismissed unless, as some Guyanese lawyers told me, there are two “packoo Judges” who would rule favourably. No Judge would want to tarnish his reputation in granting an appeal. The CCJ will strike it down bringing more embarrassment to the state of jurisprudence in Guyana.
The matter that the petitioner plans to appeal is ‘res judicata’, as the CJ pointed out. It means that it was already litigated and disposed of and cannot be pursued any further. To file it again under a different grievance would be tantamount to contempt of the judicial process. In the US, lawyers get fined for judicial abuse. They can face criminal contempt. They could also lose their license to practice. Judges take actions against errant lawyers so as reduce congestion in the judicial system. Not everything is ‘appealable’. The CCJ ruled on the issues raised by the petitioner. The COA can’t reverse those judgments.
The petitioner is advised to allow the declaration to proceed and then file an election petition as the PPP did in 2015. It has a better chance of success in a petition.