Elections 2020: Appeal Court sets aside Full Court decision on jurisdiction

THE Court of Appeal has set aside the decision of the Full Court that the High Court has no jurisdiction to hear a case brought by Ulita Moore, challenging a decision to have the Caribbean Community (CARICOM) supervise a National Recount based on agreement between President David Granger and Leader of the Opposition, Bharrat Jagdeo.

“It is ordered that the order of the Full Court that the High Court did not have jurisdiction be set aside. It is also ordered that this appeal be allowed to the extent that it would be unconstitutional for the Guyana Elections Commission to abdicate or delegate its supervisory function over the election process, more particularly the recount of ballots cast at the March 2nd elections,” the Appellate Court ruled.

The Consequential Orders were issued by Justices of Appeal Dawn Gregory and Rishi Persaud and High Court Judge Brassington Reynolds, on Tuesday afternoon, in the case Ulita Moore v Bharrat Jagdeo and others.

The Orders followed Sunday’s ruling by the Court of Appeal. The Full Court, which had comprised of Chief Justice Roxane George-Wiltshire and Justice Nareshwar Harnanan, in overturning an earlier decision, ruled on March 31 that the High Court had absolutely no jurisdiction to adjudicate over the case brought by Moore. However, on Sunday (April 5), the Appellate Court ruled that the High Court has ‘Supervisory Jurisdiction’ to determine whether the Elections Commission was acting outside of its constitutional mandate. “While the Commission must be allowed to perform its functions,” Justice Gregory reasoned, “certainly the High Court must have the powers, as well as jurisdiction to enquire whether those functions are being performed as the Constitution mandates.”

Articles 62 and 162 of the Constitution provide for the roles and responsibilities of GECOM. Article 62 states: “Elections shall be independently supervised by the Election Commission in accordance with the provisions of Article 162.”

The Appellate Judge pointed out that throughout Moore’s Claims and Affidavit, she referenced to the agreement made by the President and Opposition Leader for a recount to be facilitated under the supervision of the CARICOM. GECOM had acceded to this agreement on March 17, when High Court Judge Franklin Holder granted Moore four interim orders, blocking the recount from taking place until the hearing and determination of the Fixed Date Application. These interim orders, however, were discharged by the Full Court on March 31.

Following Sunday’s ruling, which in effect established the Court’s jurisdiction to hear the case, the battery of lawyers representing Moore asked the Appellate Court to restore the interim orders, which were granted by Justice Holder. But the Appellate Court on Tuesday did not grant that order.

“It is further ordered that all other orders of the Full Court be affirmed,” the Appellate Court said. This means that the interim orders or injunctions granted by Justice Holder stand discharged as ruled by the Full Court.

However, while the Appellate Court ruled that the High Court has jurisdiction to treat with the constitutionality of the agreement entered into by the two political leaders and acceded to by GECOM, it ruled that other aspects of Moore’s FDA are for an Elections Petition and not Judicial Review.

In her application, Moore contended that the Elections Commission, by failing to consider the report of the Chief Elections Officer, which would have led to the declaration of the President, was in breach of Article 177 of the Constitution, and Section 99 of the Representation of the People Act. But Justice Gregory ruled, on Sunday, that those actions are not automatic.

“It could not be that once a certain stage had been reached in the process that it was automatic that the process would move to Article 177 and Section 99 of the Representation of the People Act,” Justice Gregory said while emphasising that the claims, as contended by Moore, could not be sustained.

Further to that, Justice Gregory ruled that an order for a recount of all the votes cast at the March 2, 2020 General and Regional Elections under Section 22 of the Elections Law (Amendment) Act 2000 would not be unconstitutional. “That Order enabled the Elections Commission, as I saw it, to exercise the powers of the nature, which it was given by the Constitution,” Her Worship said, adding: “In my view, there was nothing unconstitutional about Section 22 of the Elections Law (Amendment) Act of 2000; in fact, it enabled arrangements to be made for the recount.”

Section 22 (1) states: “If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.”

Moore was represented by a battery of lawyers led by Grenadian Queen Counsel Dr Francis Alexis. The other lawyers included Attorneys-at-Law John Jeremie S.C., Keith Scotland out of Trinidad and Tobago, and Guyana’s Senior Counsel Roysdale Forde and Attorney-at-Law Mayo Robertson. Jagdeo was represented by Trinidad’s Senior Counsel Douglas Mendes and Guyana’s Attorneys-at-Law Anil Nandlall and Davindra Kissoon. Senior Counsel Neil Boston represented the Chief Elections Officer, Keith Lowenfield, while the Chair of GECOM, Justice (Ret’d) Claudette Singh was represented by former Solicitor General and Attorney-at-Law, Kim Kyte-Thomas. Attorney-at-Law Timothy Jonas appeared on behalf of A New and United Guyana (ANUG), the Liberty and Justice Party (LJP) and The New Movement (TNM) – all added respondents in the matter.