Chief Justice, Roxane George-Wiltshire, ruled that the High Court has jurisdiction to determine whether the Guyana Elections Commission (GECOM) Returning Officer, Clairmont Mingo, followed the correct procedure before declaring the total number of votes for District Four in the General and Regional Elections.
Justice George-Wiltshire handed down the judgment on Sunday, before a packed courtroom, in the case brought against the Returning Officer, Clairmont Mingo; the Chief Elections officer, Keith Lowenfield; and GECOM by a private citizen – Reeaz Holladar – on behalf of the People’s Progressive Party/Civic (PPP/C).
In delivering her ruling, the Chief Justice said aspects of the claims made in Holladar’s application would be better canvased in an elections petition, and as such, out of an abundance of caution, she did not rely on any of that evidence in coming to a decision.
“However, having reviewed the application, submissions and authorities cited, I have concluded that this court has jurisdiction to hear this application as regards whether the first respondent, the Returning Officer, has complied with Section 84 of Chapter 01:03 [of the Representation of the People Act],” Justice George-Wiltshire ruled.
The Returning Officer, she said, exercises statutory authority, and in this case, under Section 84 of the Representation of the People Act. Section 84 (1) states: “As soon as practicable after the receipt of all the ballot boxes and the envelopes and packets delivered to him in pursuance of Section 83 (10), the Returning Officer shall, in the presence of such of the persons entitled under Section 86 (1), to be present as attend, ascertain the total votes cast in favour of the list in accordance with the Statements of Poll, and thereupon publicly declare the votes recorded for each list of candidates.”
According to the Chief Justice, there is sufficient evidence that the process may have been breached by Mingo in his capacity as the Returning Officer. “There is prima facie evidence that there has been non-compliance with the process outlined in Section 84,” the Chief Justice told the parties on both sides.
She reasoned that while Gladys Petrie and others vs the Attorney General (1968), V. Sreekumar vs The Chief Electoral Officer (2009) and Palpandi vs The Chief Electoral Officer, confirmed that elections petitions are the state of procedure for challenges to elections, it is equally clear from the decisions in the Elections Commission of India vs Ashok Kumar, Joseph Hamilton vs Guyana Elections Commission & Others and Aubrey Norton vs the Guyana Elections Commission cases, that an election official is subject to judicial review if, before the declaration of the final results, he or she fails to follow the procedures outlined in an established statute, in this case Section 84 of the Representation of the People Act. Justice George-Wiltshire said in the affidavits submitted on behalf of Holladar, there is prima facie evidence that Section 84 may not have been completely followed by the Returning Officer.
Referencing to the case – Joseph Hamilton v Guyana Elections Commission & Others – a matter adjudicated by Chief Justice Desiree Bernard, Justice George-Wiltshire said the complaint was in relation to non-compliance of Section 84 of Chapter 01:03 by the then Chief Elections Officer. She said while Chief Justice Bernard made it clear that the validity of the results of an election could only be challenged by way of an elections petition, in ordering the Chief Elections Officer to comply with Section 84, she noted that the applicant’s complaint was not about the validity of the election, but rather the need for the Chief Elections Officer to comply with his statutory duties.
“The situation is no different as disclosed in the prima facie evidence in the affidavits of the applicant…The Hamilton case clearly contemplates judicial review of actions or decisions made by elections officers made during the process of elections,” the Chief Justice emphasised.
Noting that she is cognisant of the restrictions that require the approach to the court by way of an elections petition, Justice George-Wiltshire said there can clearly be cases where the court’s supervisory jurisdiction can be invoked to ensure the correct and smooth operation of an election process.
“A court cannot shirk its duty in this regard and shelter behind the contention that an elections petition should be filed when the case clearly does not so warrant. As such, having found that there is prima facie evidence to support the court having jurisdiction to hear this application, the respondents must be given a chance to be heard in response through any evidence they may wish to file,” Justice George-Wiltshire stated.
As a result of the judgment handed down, the injunction secured by Holladar from Justice Navindra Singh to block GECOM from declaring the results for the General and Regional Elections remains intact until a final determination of the court in the substantive case. It also effectively puts on hold the swearing-in of the President.
In the substantive case, Holladar is seeking a number of remedies including an order from the High Court that the declaration of the Region Four votes by the Returning Officer is in breach of the provisions of the Representation of the People Act and as such, it is unconstitutional; and a declaration that GECOM cannot legally or constitutionally declare the results of the General and Regional Elections unless and until the Returning Officer or the Deputy Returning Officer for Region Four, complies with the process set out in Section 84 of the Representation of the People Act.
Senior Counsel, Neil Boston, and Attorney-at-Law, Robin Hunte – the attorneys representing the Returning Officer, the Chief Elections Officer and GECOM – will now be required to file their Affidavit in Defence by 10:30hrs on Tuesday, March 10, 2020, while Trinidad’s Senior Counsel, Douglas Mendes, and Attorney-at-Law, Anil Nandlall, the attorneys representing Holladar, have until 13:30hrs to respond if necessary. The case, however, will be heard from 15:00hrs on that very day. Before she handed down the ruling, the Chief Justice had called on all of the parties involved to be responsible in their actions, noting that while the ruling may not be pleasing the eyes of all, the court’s decision must be respected.
The judgment was delivered in the presence of a number of international observers including those from the Commonwealth, Carter Center, Organisation of American States and European Union Electoral Observation Missions.