‘Monday is D-Day’

IN a legal battle of words in the Court of Appeal on Saturday, Attorney-General and Minister of Legal Affairs, Basil Williams argued that the Guyana Elections Commission (GECOM) clothed itself with the authority to determine the ‘final credible count’ of the General and Regional Elections when it enacted Order No. 60, but Kim Kyte-Thomas, the Legal Counsel representing the Chairman of GECOM, Justice (Ret’d) Claudette Singh, said no Order can supersede the Constitution, the Supreme Law of the Land, and therefore GECOM cannot pronounce on the validity and credibility of the Elections.

A CREDIBLE COUNT 

In his virtual oral submission in the case challenging GECOM’s failure to decide on the final credible count, the Attorney-General told the panel of three judges, led by Justice of Appeal Dawn Gregory, that the Elections Commission has a duty and responsibility under Article 162 of the Constitution and Order No. 60, to determine whether the General and Regional Elections held last March were fair and credible.

Minister Williams submitted that while Kyte-Thomas, in defence of her client, argued that the Elections Commission could not have clothed itself with jurisdiction to determine the credibility of the 2020 Elections, GECOM did just that when it used Article 162 of the Constitution and Section 22 of the Elections Law (Amendment) Act to bring Order No. 60 into legal effect. That Order, he posited, gave GECOM the jurisdiction to deal with credibility during the electoral process.

To prove his case, the Attorney-General invited the judges — Justices of Appeal Dawn Gregory and Rishi Persaud and High Court Judge, Brassington Reynolds — to have a closer look at the provisions of Order No. 60, the legal cover GECOM used to facilitate a 33-day National Recount. He submitted that throughout the Order and its amendment, GECOM undertook the responsibility to arrive at a final credible count before the Elections Result is declared. In keeping with the established criteria to determine credibility, there was a reconciliation of the ballots issues with the ballots cast, destroyed, spoiled and stamped. Further to that, the counterfoils or stubs, authenticity of the ballots, 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 utilised, the statistical anomalies and occurrences recorded in the Poll Books, were taking into consideration, and including in Observation Reports generated during the recount process, the Attorney-General pointed out.

“These are the powers that GECOM gave itself to determine the credibility of the Elections of March 2,” the Attorney-General put to the Appellate Court. He said, in particular, Paragraph 14 as cited in the addendum, establishes clearly the case for a “final credible count.”

The amended Order at Paragraph 14 states: “The Commission shall, after deliberating on the report at Paragraph 12, determine whether it should request the Chief Election Officer to use the data compiled in accordance with Paragraph 12 as the basis for the submission of a report under Section 96 of the Representation of the People Act, Cap 1:03, provided that the Commission shall, no later than three (3) days after receiving the report, make the declaration of the results of the final credible count of the elections held 2nd day of March 2020.” According to Paragraph 12 of the Order, the matrices for the recount of the 10 Electoral Districts must be tabulated by the Chief Elections Officer, and a report submitted to the Elections Commission together with a summary of the Observation Reports for each District.

GROUNDS FOR ANNULMENT

Minister Williams was keen on pointing out that the Order provided the Elections Commission with the option of determining whether or not it should request the Chief Election Officer to use the data compiled as the basis for the submission of an Elections Report. The Attorney-General submitted to the Appellate Court that utilising that option, GECOM should nullify the Elections, on the basis that the Chief Elections Officer, Keith Lowenfield, in his report, indicated that the credibility of the elections could not have been ascertained due to widespread anomalies, and cases of voter impersonation that were discovered during the National Recount.

He said the Elections Commission should not have requested the CEO to use the data to compile an Elections Report under Section 96 of the Representation of the People Act, knowing very well that the elections were less than credible. The Chair of GECOM, Justice (Ret’d) Claudette Singh, in requesting the Elections Report, said GECOM does not have the jurisdiction to investigate the anomalies, but the Attorney- General said Elections Commission has a duty to call off the elections, in light of the credibility issues.  “GECOM cannot make an order and [revert] from it; GECOM has to stay the course,” Williams argued, while maintaining that under Article 162 of the Constitution, GECOM, upon failing to conduct a credible and fair election, can annul it.

“It is a decided principle of law that the Elections Commission, in furtherance of its duty to deliver results that are fair, credible and truthfully reflect the will of the people, can exercise its inherent jurisdiction to cancel an election, on the ground of uncovered manifest and pervasive irregularities, anomalies and discrepancies,” he submitted to the Appellate Court.

Should the Elections Commission ignore the evidence of corruption and proceed with a declaration, it, in effect, would be undermining its own integrity, he further submitted. The public’s confidence in the electoral process, he added, would undoubtedly be eroded. In resting his case, the Attorney-General reminded the court that Article 177 of the Constitution clearly states that the Elections Commission could only act on the advice of the Chief Elections Officer, who would have long indicated that the elections did not pass the credibility test. The Attorney-General appeared in association with Attorney-at-Law Maxwell Edwards.

SUBSIDIARY LEGISLATION Vs CONSTITUTION

But Kyte-Thomas told the panel of judges, in her virtual presentation, that Order No. 60 –a subsidiary legislation, cannot supersede the Constitution of Guyana – the supreme Law of the land. The Legal Counsel argued that the Constitution, in Articles 162 and 163, clearly and sharply separates the functions of the Elections Commission and that of the High Court with respect to the electoral process. Only the High Court, under Article 163 of the Constitution, has jurisdiction to determine the validity and credibility of the Elections via an Elections Petition.

“To ask, through the Recount Order, to take away the jurisdiction of the High Court and place it in the hands of GECOM, your honours, that is an impossibility that cannot be done,” Kyte-Thomas told the judges. Ruling out the notion that GECOM can annul the elections, she again referenced Article 163, emphasising that the High Court has the exclusive jurisdiction to determine any issue relative to the validity and credibility of an election.

Having listened to Kyte-Thomas’ submissions, Justice Reynolds asked, with whom the responsibility resided for the determination of a final credible count and how was that responsibility to be discharged, taking into consideration the fact that the Order gazetted by GECOM has as its objective the determination of a final credible count.

In response, Kyte-Thomas said: “The Court has to determine the credibility not GECOM.” She again maintained that the Order, as a subsidiary legislation, cannot amend the Constitution. “It is the Court, it is still the Court,” she submitted while iterating that the Constitution is the supreme law of the land.

Pressing Kyte-Thomas, Justice Reynolds further asked: “But you do agree that the Order did set as an objective of the Commission, determining the final credible court?

The Legal Counsel responded in the positive but said the applicant Eslyn David, through her lead Attorney, Trinidad’s Senior Counsel John Jeremie, is really seeking an interpretation of the Order and not the Constitution, and as such the case in general ought to have been filed in the High Court.

JURISDICTION

In fact, Kyte-Thomas had submitted from the onset that the Article – Article 177 (4) – upon which the applicant is relying on, clothed the Appellate Court with a “narrow special exclusive” jurisdiction to hear and determine questions relative to the validity of an election of a president with particular reference to qualification and or the interpretation of the Constitution. According to her, the application was premature and misconceived.

But both Jeremie and the Attorney-General rejected Kyte-Thomas’ submissions, stating that the case was properly filed under Article 177 (4) of the Constitution. The Trinidad Senior Counsel argued that Article 177 (4) of the Constitution gives the Court of Appeal exclusive jurisdiction to interpret the Constitution with regards to the election of a President, and that, he posited, is distinct from the jurisdiction Article 163 vests in the High Court to exclusively determine any question regarding the qualification and election of a person to the National Assembly.

“Parliament does not legislate in vain. The exclusive jurisdiction to interpret the Constitution in accordance with Article 177 (4) is afforded to the Court of Appeal and the Court of Appeal alone. There is no similar provision granting the same jurisdiction to the High Court acting as an election court,” Jeremie submitted. In support of his case, Jeremie relied on the case of Eusi Kwayana’s Application (1980). Among other things, David, through her battery of lawyers led by Jeremie, wants the Appellate Court to interpret, through an order, the words “if more votes are cast” in Article 177 (2) (b) of the Constitution. David’s battery of lawyers said the Appellate Court, in its deliberation, should consider several issues including whether the gazetted Order that triggered the National Recount affected or altered the meaning of the phrase “if more votes are cast” in Article 177 (2) (b) of the Constitution to the extent that it now means more valid and credible votes cast, which would effect lead to the election of a president.

ORIGIN OF THE RECOUNT

Trinidad and Tobago Senior Counsel Douglas Mendes, who appeared virtually on behalf of added respondents Bharrat Jagdeo, General Secretary of the People’s Progressive Party/Civic (PPP/C)  and Irfaan Ali, PPP/C’s Presidential Candidate, told the Court that the Order, which initiated a National Recount, birthed out of an allegation of fraud, allegedly perpetuated by Region Four Returning Officer (RO) Clairmont Mingo during the tabulation of the Statements of Poll (SOPs) just days after the elections. He opined that the applicant in the case is suggesting that GECOM must revert to Mingo’s count – which according to him was fraudulent.

“It is against that backdrop that it is easy to appreciate that the application that has been made here is a cynical one; in deed it is a hopeless application for all of the reasons that we have indicated,” Mendes told the Court. He, like Kyte-Thomas, argued that the Court had no jurisdiction to hear the application, and that it was prematurely filed.

Interjecting, Justice Gregory, while taking into account Mendes’ submissions on jurisdiction, questioned the status of the Order and its amendment.

In doing so, the Appellate Judge drew attention to the fact that it was an allegation of irregularities that led GECOM to facilitate a National Recount under the gazetted Order. “How come those irregularities from before that led to the recount had an impact at this stage but now you are saying the irregularities that now emerge ought not to have an impact at this stage?” the Judge asked.

Though not directly answering the question, Mendes, in response, said that while the irregularities cited during the recount are of concern, they ought to be enquired into via an Elections Petition in the High Court after a declaration of the results of the elections. Oral submissions were also made by Senior Counsel Ralph Ramkarran, the attorney representing A New and United Guyana (ANUG), The New Movement (TNM) and the Liberty and Justice Party (LJP); and Attorney-at-law Kashir Khan, who represented the interest of the Citizenship Initiative and Change Guyana. Both Khan and Ramkarran endorsed the submissions made by Kyte-Thomas and Mendes.

On Monday, the Appellate Court will hand down its decision at 13:30hrs.