“Constitution cannot be treated with idle disregard”

Attorney General, Basil Williams, in maintaining that the Caribbean Court of Justice (CCJ) has no jurisdiction to entertain the application filed by the People’s Progressive Party/Civic (PPP/C) challenging the Court of Appeal’s interpretation of the Constitution, said the Constitution is supreme, and therefore cannot be outweighed by an Act.

By a 2-1 margin, the Court of Appeal, on June 22, ordered that the words “more votes are cast” in Article 177 (2) (b) of the Constitution be interpreted to mean “more valid votes are cast” in a case brought by Eslyn David – a North Sophia voter. The ruling of the Appellate Court, in its original jurisdiction under Article 177 (4), in effect, stipulates that the election of a President must be on the basis of valid votes. In objection, the PPP/C, through its General Secretary, Bharrat Jagdeo and Presidential Candidate, Irfaan Ali, moved to the CCJ, seeking special leave to appeal the Court of Appeal’s decision but the Attorney General – the fifth named respondent – believes the CCJ has no jurisdiction to hear the case.
In his written submission to CCJ on Sunday (June 28), the Attorney General said the decisions of the Court of Appeal made under Article 177 (4) are final as indicated by the Constitution, which ousts all other courts including the Caribbean Court of Justice.

He submitted that while Parliament, under Article 123 of the Constitution, established the CCJ as Guyana’s final Appellate Court with the enactment of the Caribbean Court of Justice Act, the court’s jurisdiction is limited. In support of his argument, the Attorney General pointed to Section 4 (3) of the Caribbean Court of Justice Act, which states that “Nothing in this Act shall confer jurisdiction on the Court to hear matters in relation to any decision of the Court of Appeal which at the time of entry into force of this Act was declared to be final by any law.”

“It is submitted that Section 4 (3) preserves the jurisdiction of the Court of Appeal and has overriding effect over any other provision in the CCJ Act. Through the use of the words ‘Nothing in this Act shall confer jurisdiction on the Court…’ the Parliament of Guyana saved the law which speaks to the exclusive jurisdiction of the Court of Appeal and reaffirmed the Court of Appeal as the only Court to adjudicate on those matters stated in Article 177 (4),” Williams told the Court.

He explained that while the Caribbean Court of Justice Act clothes the CCJ with both an original and appellate jurisdiction, the exclusive jurisdiction of the Court of Appeal is preserved under Section 4 (3) with regards to cases brought under Article 177 (4). From all indication, he said the decisions made by the Court of Appeal under Article 177 (4) of the Constitution are final.

In support of his position, the Attorney General referenced to Thornton’s Legislative Drafting (5TH Edition) and Halsbury’s Laws of England/Statutes and Legislative Process (Volume 96).

“Section 4 (3) of the CCJ Act is a saving provision, the intention of which is to narrow the effect and general operation of the CCJ Act in order to preserve the existing jurisdiction conferred on the Court of Appeal under Article 177 (4) of the Constitution from its general operation,” Williams further submitted, noting that the intention of Parliament is unambiguous.

He noted that while Sections 6 and 8 of the Caribbean Court of Justice Act, deal with matters of procedures with respect to the appeals to the Court, those sections are subject to Section 4 (3) which is the substantive provision under the rubric of the “Jurisdiction of the Court.”

Further to that, the Attorney General ruled out the notion that Section 26 of the Caribbean Court of Justice Act can be relied on to confer jurisdiction on the CCJ in the case brought by Ali and Jagdeo.

“This section requires all laws, including the Constitution, in force immediately before the commencement of this Act, to be interpreted in a manner consistent with the provisions of this Act. Additionally, Section 26 is also subject to Section 4 (3) and cannot therefore confer on this Honourable Court any jurisdiction that has been ousted by Section 4 (3),” he reasoned.

Importantly, the Attorney General submitted that Section 26 of the Caribbean Court of Justice Act cannot modify the Constitution – the supreme law of the land.

While Section 26 (1) of the Caribbean Court of Justice Act identifies the CCJ as Guyana’s final appellate court, Williams submitted that the Constitution is supreme and cannot be overruled by an Act. “Accordingly, as stated in Article 8 of the Constitution, where there is any inconsistency between Section 26 and the Constitution, the Constitution will prevail,” he told the Court.

Article 8 states: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
While the CCJ has not accepted jurisdiction to hear the appeal being sought by Ali and Jagdeo, it has agreed to hear submissions on the issues of jurisdiction, the application for special leave and the substantive matter before making a determination.

Meanwhile, in answering the question of whether the Court of Appeal had jurisdiction to entertain the Motion filed by Eslyn David, the Attorney General submitted that the Court of Appeal correctly established jurisdiction to determine the relief sought by the appellant. He iterated that Article 177 (4) grants that the Court of Appeal exclusive jurisdiction to hear and determine any question as to the validity of the election of a President in so far as that question depends upon the qualification of any person for election or the interpretation of the Constitution. He said it was under that section of Article 177 that the Appellate Court offered its interpretation of the Constitution. Oral arguments in the case will be heard virtually on Wednesday, July 1, 2020 by a panel of judges led by CCJ’s President, Justice Adrian Saunders.