Opposition attorneys back down

THE Opposition had vowed to rebut arguments by the Attorney General, Basil Williams, that High Court Judge Franklin Holder had ruled that any challenge to the validity of the March 13 Declaration by Region Four Returning Officer, Clairmont Mingo, must come by way an Election Petition, but on Sunday, it turned up empty handed.

The Attorney General had referenced to the case – Bharrat Jagdeo and Reaz Holladar v the Returning Officer – in the Court of Appeal on Saturday after Trinidad and Tobago’s Senior Counsel Douglas Mendes had invited the Appellate Court to invalidate the Mingo’s March 13 Declarations. Mendes, who appeared on behalf of People’s Progressive Party/Civic’s General Secretary, Bharrat Jagdeo and Presidential Candidate Irfaan Ali in the Misenga Jones case, had said there was a “full trial” into the March 13 Declaration and undisputed “evidence” in the court showed that electoral fraud had been committed.

“As a matter of fact, there is no dispute of fact before the Court concerning Mingo’s declaration. None!” he submitted.
But the Attorney General, in shutting down Mendes’ attempt to conceal the decision of Justice Holder, told the Appellate Court that an attempt by the PPP/C to have the Declaration set aside failed after the Court ruled that any challenge to the validity of Mingo’s Declaration must be filed in an Elections Petition Court.

In setting the record straight, the Attorney General had explained that the Chief Justice (ag) Roxane George-Wiltshire, on March 11, had set aside Mingo’s first Declaration made on March 5, on the grounds that there was substantial non-compliance with Section 84 (1) of the Representation of the People Act when the Statements of Poll (SOPs) for District 4 were tabulated. In handing down her decision, the Chief Justice had given strict orders to the Returning Officer, and according to the Chief Elections Officer, Keith Lowenfield, there was strict compliance with those orders, which led to the second Declaration on March 13.

It was after the March 13 Declaration was made that Jagdeo and Holladar moved to the High Court, for a third time, seeking to have it invalidated. Justice Holder, in handing down his decision, said the core issues raised in the application touched on matters provided for in Article 163 (1) of the Constitution, and as such, ought to be dealt with by way of an Elections Petition pursuant to Section 3 of the National Assembly (Validity of Elections) Act.

According to Article 163 (1) (b) (i), the High Court has exclusive jurisdiction to determine any question on whether, “either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission.”

Justice Holder, in his ruling, had also drew attention to the fact that Mendes had agreed that challenges to the lawfulness of a declaration must be placed before an Elections Petition Court. “Further, Mr Mendes concedes that the complaints made about the Returning Officer’s conduct falls within Article 163 (1) (b) (i) of the Constitution and as such the High Court has exclusive jurisdiction to hear that complaint,” Justice Holder had said.

The Attorney General told the Appellate Court that it is instructive to note that Justice Holder’s decision in the case brought by Jagdeo and Holladar was never challenged. “It was never appealed,” he emphasized, noting that, like the High Court, the Guyana Elections Commission (GECOM) cannot set aside or invalidate any of the 10 Declarations made in March, outside of an Elections Petition.

Jones’ lead attorney, Trinidad and Tobago’s Senior Counsel, John Jeremie, endorsed the case cited by the Attorney General.
But the Attorney General’s reference to the case did not sit well with Mendes and the other Attorneys representing a number of small political parties, in particular Kashir Khan.

Mendes, in response, told the panel of judges led by Justice of Appeal Dawn Gregory that it was not necessary for the Attorney General to reference the ruling of Justice Holder. He then conceded that any question to the validity of Mingo’s Declaration is a matter for an Election Petition pursuant to Article 163 of the Constitution and the National Assembly (Validity of Elections) Act.

Khan, however, pleaded with the Appellate Court for time to respond to the Attorney General’s contention that Mendes had concealed Justice Holder’s decision from his argument. He told the Court that he hadn’t the opportunity to look at the case raised by Williams, and would wish for time to lay over additional submissions. That time was granted to Khan and all the other responding attorneys in the case, including Mendes. Those submissions were expected to be two pages each, and were due on Sunday.

But when Sunday came, Khan and others came up empty handed. “With regard to the case mentioned at the end of oral submissions made in the Cross Appeals, having had an opportunity to peruse the transcript provided, I am of the view that no additional submissions are necessary,” Khan told the Court’s registrar. Mendes also had no submission.