Jagdeo agrees that valid votes must determine declaration

LEADER of the Opposition, Bharrat Jagdeo says that the People’s Progressive Party/Civic (PPP/C) agrees with the APNUI+AFC that an election declaration must be made based on only valid votes, but believes that the version of the recount data which shows over 4,000 cases of voter impersonation, and over 2000 anomalies should be used to make a declaration in his Party’s favour.

“We’re not challenging the validity of the votes; the Court of Appeal ruling that ‘votes’ in our Constitution mean ‘valid votes’ is a non-issue, because it couldn’t mean invalid votes,” the Opposition Leader said on Tuesday during an Online briefing.

However, he went on to argue that the Guyana Elections Commission (GECOM) has already determined what the valid votes are through the national recount, and based on and in accordance with the Representation of the People Act. Yet, the Opposition Leader failed to take into consideration Order No. 60 (the recount Oder) which speaks to the determination of “a final credible count” based on the “reconciliation of the ballots issued with the ballots cast” against a number of statutory documents.

NO ISSUE WITH VALID VOTES

High Court Judge, Justice Brassington Reynolds, who formed part of the panel of judges at the Court of Appeal in the Eslyn David v Chief Elections Officer (CEO) et al case, drew attention to the fact that under Order No. 60, the objective was set to determine the “final credible count”.

“Accordingly, I find that GECOM does have a responsibility to determine the final credible count of the results. It would be reasonable to presume that the final credible count would require both quantitative and qualitative assessments of reports, and the summary of observations submitted to the Commission in compliance with Order No. 60 of 2020,” Reynolds had stated.

However, though supporting a declaration based on valid votes on Tuesday, the Opposition Leader simultaneously pushed for the version of the recount data highlighted by the CEO as having over 4,000 cases of voter impersonation and over 2000 anomalies. He argued that the results should be declared on the recount data as is; that any contention should be made through an elections petition, and the Court of Appeal had no jurisdiction to rule on the matter.

“We don’t have any issue with any Court saying that ‘more votes cast’ means ‘more valid votes’, because we agree with that, in principle; it couldn’t mean otherwise. What we have gone to the Court on is because [the Appeal Court] exceeded that jurisdiction, and interfered with the process of how a President could be challenged, and how the results of the elections could be challenged, and took jurisdiction in areas where they had none,” he said.

JURISDICTION JUSTIFIED

His party’s position, which it has brought to the Caribbean Court of Justice (CCJ), is that GECOM is a Constitutional body, and therefore the Court cannot give the Commission orders on what it should do. However, it is based on this position, shared by the Court of Appeal, that it clearly stated during Eslyn David’s case that it has jurisdiction, and subsequent ruling on the matter was based on the powers vested upon it in Article 177 (4) of the Constitution to provide an “interpretation” of Article 177 (2) (b).

Article 177(4) of the Constitution states: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President, in so far as that question depends upon the qualification of any person for election, or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.”

As was later explained by APNU+AFC Elections Manager Joseph Harmon in a written submission to the CCJ by his Trinidadian attorneys, Reginal T.A. Armour and Raphael Ajodha: “In other words, the Court of Appeal made no determination as to whether the votes cast were valid or not, and, imposed no criteria by which the validity of votes would be determined. The Court of Appeal simply exercised its jurisdiction in a limited manner to interpret Article 177 (2) (b) of the Constitution to mean ‘more valid votes are cast’.”

AGAINST ‘VALID VOTES ONLY’ REPORT

It was on that basis that CEO Keith Lowenfield submitted his Elections Report to the Elections Commission, using only votes which could be validated. “I have taken note of the guidance of the Court of Appeal in Eslyn David v Chief Elections Officer et al in the preparation of my Report under Section 96 of the Representation of the People Act and providing advice as required by Article 177 (2) (b) of the Constitution of the Cooperative Republic of Guyana,” Lowenfield said in his Report submitted to GECOM Chair, Justice (Ret’d) Claudette Singh on June 13.

However, during his Online briefing, Jagdeo maintained his party’s challenge to Lowenfield’s report, contending: “The Court never established the criteria by which the validity of votes would be determined, so, how then would Lowenfield determine that he, unilaterally, citing the Court of Appeal decision, can invalidate 115,000 valid votes. What criteria did he use?”

To answer this question, one must return to the Court of Appeal’s ruling that the words “more votes are cast” should be interpreted to mean “more valid are votes” — which the Opposition Leader states his Party agrees with. One must note the basis upon which the Court made its ruling, as stated by High Court Judge, Justice Brassington Reynolds. He said that under Order No. 60, the objective was set that “…the final, credible count would require both quantitative and qualitative assessments of reports and the summary of observations submitted to the Commission in compliance with Order No. 60 of 2020.”

Therefore, in answering the question of what constitutes a “valid” vote, one must return to Order No. 60 and which was made by the Elections Commission pursuant to its powers under Article 162 of the Constitution and Section 22 of the Elections Laws (Amendment) Act, No. 15 of 2000.

The Order outlines the need for the “reconciliation of the ballots issued with the ballots cast, destroyed, spoiled, stamped, and as deemed necessary, their counterfoils/stubs; authenticity of the ballots and the number of voters listed and crossed out as having voted; the number of votes cast without ID cards; the number of proxies issued and the number utilised; statistical anomalies; occurrences recorded in the Poll Book.”

The Merriam-Webster Dictionary defines the word ‘reconcile’ as “to make consistent or congruous”. If this is not achieved in some cases during the process, then reconciliation in those cases is not achieved. Even so, the Opposition Leader maintains that the Commission is not bound to accept the CEO’s report, and that “a decision has already been made by the Commission to use the recount data”.