Appeal ‘vexatious’, amounts to abuse

DESCRIBING the appeal filed by Misenga Jones as “frivolous” and “vexatious”, Chairman of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh made a case for it to be dismissed on the grounds that it lacks merit, and amounts to an abuse of the Court’s process.
Jones, a Tucville, Georgetown voter, is challenging the High Court’s decision to uphold Order No. 60, and by extension the National Recount. Chief Justice (ag), Roxane George-Wiltshire, in handing down the decision on July 20, said the 10 Declarations made in March by the Returning Officers have been overtaking by events; and that aside, the majority of the issues raised were res judicata having been dealt with by both the Court of Appeal and the Caribbean Court of Justice.

However, Jones, in her application, told the Appellate Court that Order No. 60 was never challenged in the Courts, and therefore the principles of res judicata could not have applied. Further, Jones, through her battery of lawyers led by Trinidad and Tobago’s Senior Counsel John Jeremie, said that the Declarations made by the 10 Returning Officers, were done in accordance with the Representation of the People Act, and therefore could not have been set aside.

But the Chairman of the Elections Commission, through her Legal Counsel Kim Kyte-Thomas, told the Appellate Court that the Chief Justice’s decision ought to be upheld, explaining that the appeal cannot be determined by way of Judicial Review but rather an Election Petition in accordance with Article 163 of the Constitution. Election Petitions could only be brought before the High Court after the declaration of the results of an election. Close to five months after General and Regional Elections have been held in Guyana, the official results have not been declared by the Elections Commission.

Further, she argued that the issues raised in Jones’ appeal are res judicata as indicated by the High Court. In support of her argument, Kyte-Thomas referenced to the decisions of the Court of Appeal in Moore v GECOM and Others; and of the Caribbean Court of Justice in Ali & Jagdeo v David & Others. Jones, the Legal Counsel said, is attempting to re-litigate issues already determined in both the Court of Appeal and the Caribbean Court of Justice, and such, should not be permitted.
“It is respectfully submitted that this Appeal lacks merit and ought to be dismissed, since the findings and decision of the Honourable Chief Justice represent the long-established jurisprudence of electoral laws and the electoral regime in respect to the issues raised before the court. In the circumstances, the Appeal filed herein is frivolous, vexatious and amounts to an abuse of the Court’s process,” Kyte-Thomas told the Appellate Court.

A key part to Jones’ application is the constitutionality of Section 22 of the Election Laws (Amendment) Act, which grants the Elections Commission the powers to amend the Electoral Laws to remove any difficulty that arises in connection with the application of the Representation of the People Act during an electoral process as deem necessary. It was Section 22 that the Elections Commission used together with Article 162 of the Constitution to bring Order No. 60 into effect so as to facilitate the National Recount but Jones is of the strong opinion that the Law is unconstitutional.

But the GECOM Chair, through her Lawyer, rejected Jones’ position. Kyte-Thomas, in her written submission, told the Appellate Court that the power given to the Commission under Section 22 relates only to subsidiary legislation and not to any parent Act.
Further, Kyte-Thomas, while submitting that Order 60 is lawful, said such an Order cannot be used to facilitate acts that are not compatible with the Representation of the People Act such as invalidating ballot papers on the basis of missing poll books. While the statutory documents were missing during the National Recount, the Attorney told the Court that poll books were available at the polling stations on Election Day (March 2).
“Put simply, by necessarily purporting to disenfranchise close to 116,000 electors, Section 20 (1) (C) of the Interpretation and General Clauses Act, Cpt 2:01 prohibits this,” she argued.

It was also submitted that it is within GECOM’s functions to resolve the controversies that arose during the electoral process in keeping with its responsibilities to deliver the results of the elections.
“In carrying out its responsibilities, GECOM must uphold the Constitution and the rule of law,” Kyte-Thomas told the Appellate Court.
She added: “In light of the evidence brought before the High Court and having regard to the power of GECOM conferred by the Constitution and the ROPA it would be unlawful for GECOM to surrender its supervisory function over the election process, more particularly over the recount of ballots cast at the March 2nd elections.”

In inviting the Appellate Court to have a closer look at the Recount and Order No. 60, the Attorney submitted that in the Ulita Moore Case, the very Court endorsed the National Recount. A similar position, she argued, was taken by the Caribbean Court of Justice in the Bharrat Jagdeo and Irfaan Ali v Eslyn David and Others Case.

“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,” a section of the summary of the CCJ’s judgment reads. Kyte-Thomas said it was based on the decisions of the Courts, that the Chief Justice made it pellucidly clear that the Recount Order could not have been invalidated.
“It is respectfully submitted that the Court of Appeal and the Caribbean Court of Justice have already determined the validity of the Recount process and the recount Order and found that the process was transparent and in keeping with the Constitutional powers of GECOM as well as the legislative framework of our electoral system,” Kyte-Thomas told the Appellate Court.

On that basis, the Attorney also rejected the contention that the CCJ had invalidated Order 60. Kyte-Thomas said the Courts have established that the primary intention of the Order was to determine a final credible.

Further, she reminded the Appellate Court that it was the Chairman of GECOM’s decision that the March 13 declarations cannot be used since they were replaced by the votes tabulated during the National Recount at the Arthur Chung Conference Centre (ACCC). This decision, she posited, was endorsed by the Chief Justice, who in her judgment, said that the March Declarations were overtaken by events, and are no longer useful at this stage of the electoral process.