ROs’ declarations cannot be set aside

The Declarations made by the 10 Returning Officers in March cannot be set aside by the Guyana Elections Commission (GECOM), a team of legal luminaries representing Misenga Jones have argued in their written submissions to the High Court ahead of today’s (July 17) oral arguments.

The battery of lawyers, led by Trinidad and Tobago’s Senior Counsel John Jeremie, told the Court that the Declarations together with the Elections Report compiled by the Chief Elections Officer constitutes an accrued right. It was argued that while the Elections Commission facilitated a National Recount under Order No. 60 which was brought into effect using Article 162 of the Constitution and Section 22 of the Election Law (Amendment) Act, such an order does not allow for new declarations to be made. Any attempt to declare the results of the General and Regional Elections using data from the National Recount would be unconstitutional and in direct conflict with the accrued rights as set out in and crystallised in the Declarations and the Report of the Chief Elections Officer, Jeremie argued.

Further the Trinidadian Senior Counsel submitted that the approach taken during the recount not only crossed boundaries such as those outlined in Article 163 but also breached the Representation of the People Act.

“It is important to note that the application of Section 22 [of the Elections Law (Amendment) Act] by GECOM to conduct a recount related not to mere procedural matters but substantive ones which were for an Election Court under Article 163. The approach of GECOM breaches the Constitution and the RPA by its unconstitutional establishment of a dispute resolution process that is contrary to the RPA which excluded the statutory officers, that is to say, the Returning Officers from the recount process and declaration of the counts,” Jeremie argued.

Referencing to Section 84 of the Representation of the People Act, the Legal Counsel told the Court that it is clear from the Act that the Returning Officers are required to make their respective declarations, and the Chief Elections Officer, in accordance with Section 96 of the very Act, is required to consider the declarations in the preparation of his Elections Report.

“Order 60 cannot bring about a new legal regime for the basis of the declaration of the votes. The CCJ has expressly stated in Eslyn David that Order 60 of 2020 cannot bring about a new legal regime. There is a clear process set out for the declaration of results which the CEO must comply,” he told the Court.
According to him, Order 60 merely facilitated a fishing expedition in respect of grounds of illegalities and fraud. “Order 60 cannot and does not invalidate nor could the Chair and/or GECOM act as an imperio imperium and unilaterally invalidate declarations. That is something only an Election Court can do under Article 163,” the Senior Counsel submitted.

Referencing again to the July 8 judgment of the Caribbean Court of Justice, Jeremie reminded the High Court that Order 60 cannot create a new legal regime for the criteria and standards for the determination of validity of votes, especially when such is inconsistent with the Representation of the People Act.

“Order 60 permitted a process to be used which established the validity of votes not only by persons not authorised to so do and after the validity of votes were already determined by the Returning Officers but on criteria and standards inconsistent with the Representation of the People Act,” Jeremie argued.

Further, he contended that it is impermissible for the Elections Commission and or the Chairman to direct the CEO to produce a Report at variance with the requirements of Section 96 of the Representation of the People Act. The GECOM Chair, Justice (Ret’d) Claudette Singh had objected to CEO’s Elections Report but Jeremie argued that once the Report is in accordance with Section 96 of the Representation of the People Act, the Chairman of GECOM is duty bound to convene a meeting, present the Report and to act on the advice of the CEO tendered under Article 177(2) (b). Such, he posited, would result in the declaration of the President elect.

“The Elections Commission is not free ex post facto the 2 March 2020 declarations had already been made and reports prepared by the CEO to trample upon the established legal regime and pave its own way unilaterally to create a substantively different electoral procedure for recounts, declarations and reports well after the 2 March 2020 had occurred,” he argued.

Reminding the Court that the CEO has long submitted his Elections Report, the Trinidadian Senior Counsel said it is now time for the declaration of the results of the 2020 Elections in accordance with the course of the law under Representation of the People Act and Article 177 of the Constitution. Any challenge to that declaration could be made via an Elections Petition in the High Court as provided for in Article 163 of the Constitution.

Jeremie appeared in association with Attorneys-at-Law Roysdale Forde SC, Mayo Robertson, Keith Scotland and Rondelle Keller.