Respect the supremacy of the Constitution

THE Caribbean Court of Justice (CCJ) is not a Court of unlimited jurisdiction, Trinidad and Tobago’s Senior Counsel, Reginald Armour, said as he made a strong case for the CCJ to refuse the People’s Progressive Party Civic’s (PPP/C’s) application to appeal a decision handed down by Guyana’s Court of Appeal, on the basis that the Constitution – the supreme law of the land – restricts such an appeal.

Armour, one of the region’s legal luminaries, appeared virtually before the CCJ on Wednesday in a case filed by the PPP/C’s General Secretary, Bharrat Jagdeo, and Presidential Candidate, Irfaan Ali, against North Sophia voter, Eslyn David, and the Chief Elections Officer (CEO), Keith Lowenfield and others, challenging the Court of Appeal’s decision to interpret the words “more votes are cast” in Article 177(2) (b) of the Constitution to mean “more valid votes are cast.” Armour appeared on behalf of the A Partnership for National Unity + Alliance For Change (APNU+AFC) Coalition – an added respondent in the case.

In laying the foundation of his argument, the Trinidadian Senior Counsel pointed to the fact that the CCJ is a regional apex court, which presides over signatory sovereign Member States based on the agreement establishing the court. He submitted that any question relating to the CCJ’s jurisdiction must start and end with the “true” interpretation of the agreement, in particularly Article XXV (5), when read together with Guyana’s Caribbean Court of Justice Act of 2004.

Article XXV (5) of the Agreement establishing the CCJ states: “Nothing in this Article shall apply to matters in relation to which the decision of the Court of Appeal of a Contracting Party is, at the time of the entry into force of the Agreement pursuant to the Constitution or any other law of that Party, declared to be final.”

The panel of five judges, led by President of the CCJ, Justice Adrian Saunders, was also invited by Armour to examine Article 31 of the Vienna Convention on the Law of Treaties. “Consistent with Article 31 of the Vienna Convention, Article XXV (5) of the Agreement must be looked at for its ordinary meaning in accordance with its context, and the object and purpose of the treaty as a whole,” he reasoned.

Though the intended appellants have argued that the word “decision” in Article XXV (5) must be interpreted to mean, a decision which the Court of Appeal has jurisdiction to make, Armour told the CCJ that such interpretation in not consistent with the ordinary meaning of the word as utilised in Article XXV(5). The Court of Appeal, in offering its interpretation of Article 177 (2) (b) of the Constitution had done so under Article 177 (4) which not only grants the Court exclusive jurisdiction to interpret the Constitution with respect to the determination of the validity of the election of a President, but indicates that such decision is final.

“It is not without significant note that within the debate and passage of the Caribbean Court of Justice Act 2004, that the Act was passed unanimously by the Parliament of the sovereign Co-operative Republic of Guyana…The primacy of the sovereign Co-operative Republic’s indigenous Court of Appeal was explicitly recognised, lauded and expressly preserved as final and this Court, the CCJ, was incorporated by Parliament into the fabric of the domestic law of Guyana and expressly told it has no jurisdiction as decreed by Article 177 (4) of the Constitution,” Armour submitted to the judges.

He added: “When the matter is considered properly and in the round, against Article 31 of the Vienna Convention on the Law of Treaties, we submit that the inescapable unavoidable conclusion is that the agreement did not intent to bless the CCJ with jurisdiction to hear this particular type of appeal under Article 177 (4).”

On that basis, Armour urged the court to respect the Constitution of Guyana and refuse the application filed by the PPP/C agents for special leave to appeal a decision made under Article 177 (4).

MERIT
The Trinidadian Senior Counsel told the panel of judges that in order for the CCJ to set aside the decision of the Court of Appeal, they must first satisfy themselves that the Court of Appeal was clearly wrong. However, he submitted that the Court of Appeal did nothing more than interpret the Article 177 (2) (b) as provided for in Article 177 (4).
Did the Court of Appeal exceeded its jurisdiction? No, according to Armour. “We submit that the Court of Appeal did not. The Court of Appeal did not perform any assessment with regard to determining the validity of an election such as establishing criteria by which votes are deemed to be valid in accordance with Order No. 60’s requirement of a final credible count,” the Legal Counsel told the Court.

He alluded to the fact that Justice of Appeal, Dawn Gregory, in handing down the decision together with Justice of Appeal, Rishi Persaud, and High Court Judge, Justice Brassington Reynolds, made it clear that the Court of Appeal had no jurisdiction to determine the validity of the contents of the report that the Chief Elections Officer was expected to submit. He said the Court of Appeal stayed within its remit.

Interjecting, the President of the CCJ enquired from Armour whether Article 177 (4) could be triggered at any point of the electoral process. Armour responded in the affirmative.
It was at this juncture of his presentation that Armour drew the Court’s attention to arguments put by Guyana’s Senior Counsel, Ralph Ramkarran, who represented the interest of A New and United Guyana (ANUG) and two other political parties; and Trinidad’s Senior Counsel, Douglas Mendes, who appeared on behalf of the intended appellants – Ali and Jagdeo.

Armour noted that while the Court of Appeal’s decision was based on Article 177 (2) (b) and (4), Ramkarran and Mendes based their arguments on reliefs, which were sought but were not granted by the Appellate Court below. The reliefs which were not granted were linked to irregularities and allegations of electoral fraud which arose during the national recount, which was triggered by Order No. 60.

“The point is, all of those allegations that are being made will properly arise after a declaration is made with the guidance of the Court of Appeal whose decision, we say is final, and then an elections petition may be brought through Article 163,” he submitted.
Interjecting together with Justice Peter Jamadar, the President of the CCJ enquired whether the provisions in Article 177 could be invoked in the absence of an election of a president, and whether those provisions clashed with Article 163 of the Constitution.

“…If it is that [Article] 177 (4) can be triggered when no one knows who is the individual whose invalidity, whose elections is being challenged as being invalid, then it must mean, you are applying [Article] 177(4) not to a person, who you say have been invalidly elected, but you are applying it to a process, or to a system or to a machinery. The problem is, it is that same process, that same system, that same machinery that is necessary for membership of the National Assembly. The Constitution says, that the High Court has exclusive jurisdiction to interrogate questions relating to that process, to that system, to that machinery in relation to membership of the National Assembly. Once you decouple Article 177 (4) from the interrogation of a particular person as an invalidly elected president, then you are saying that 177 (4) also gives the Court of Appeal an exclusive jurisdiction to interrogate that same process, that same machinery, that same system as [Article]163 gives to members of the National Assembly. How could a Constitution provide exclusive jurisdiction, exclusive jurisdiction to two different courts to address or interrogate the same process, the same system, the same machinery?” the CCJ President reasoned, putting a series of questions to Armour.

In response the Trinidadian Senior Counsel said the language of the Constitution must be construed as a whole, noting that the Constitution is not self-contradictory. He said Articles 163 and 177 (4) have exclusive jurisdiction for separate matters – the validity of election of members of the National Assembly; and the President respectively.

OBJECTIONS
Further to that, Armour placed on record his concern. “It is impermissible in my respectful view for the court to permit itself on this appeal to be engaged in questions with reference to factual events that the intended appellants have put before this court with events that took place after the Court of Appeal’s decision. That is no part of the remit of this court,” he said.

Mendes and Ramkarran in their arguments had drew attention to the fact that the Chief Elections Officer, one day after the ruling of the Appellate Court, had submitted an Elections Report to the Chair of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh, in which he reportedly invalided approximately 115,000 votes. A call was even made for the CCJ to set aside the report of the Chief Elections Officer.

“It is not in my respectful view permissible for the court to allow itself to be led into error on hypothesis based on impermissible evidence that have been put before this court about things that have happened since the elections,” Armour told the judges.

He iterated that the Court of Appeal had turned down requests for reliefs which were linked to the actions of GECOM, its Chief Elections Officer, and what was deemed a need to determine a final credible count. He reminded that the Court of Appeal only issued an order interpreting the Constitution as provided for under Article 177 (4).