AS the Caribbean Court of Justice (CCJ) prepares to hand down its decision tomorrow, legal luminaries from the Caribbean and the United Kingdom have said that Guyana’s Constitution and the Caribbean Court of Justice Act have effectively ousted the jurisdiction of the regional Court from adjudicating on any decision made by the Guyana Court of Appeal, under Article 177 (4) of the Constitution, and as such the CCJ has no jurisdiction to entertain the appeal filed by the People’s Progressive Party/Civic (PPP/C).
The PPP/C, through its General Secretary, Bharrat Jagdeo, and Presidential Candidate, Irfaan Ali, wants the CCJ, notwithstanding the ouster clause in Article 177 (4), to set aside the June 22 decision of Guyana’s Court of Appeal that the President must be elected based on the majority of valid votes cast at the General and Regional Elections held last March.
But the application has received major pushbacks, with lawyers from the Caribbean Region and the United Kingdom indicating that the CCJ ought to reject the application, on the basis that it has absolutely no jurisdiction to hear the case. Among those lawyers are Guyana’s Attorney-General, Basil Williams; Trinidad and Tobago’s Senior Counsel Reginald Armour and John Jeremie; Antigua and Barbuda’s Queen’s Counsel, Justin Simon; Grenadian Queen’s Counsel, Dr. Francis Alexis; and Queen’s Counsel, Dr. Richard Wilson, a visiting Professor of Law at the Coventry University in the United Kingdom.
From the onset, Senior Counsel John Jeremie, the lead attorney representing Eslyn David, the first-named respondent, argued that there is no room for an appeal under Article 177 (4) of the Constitution. In his written submission to the CCJ, Jeremie explained that the relief sought in David’s Notice of Motion for the interpretation of Article 177 (2) (b) fell squarely within the jurisdiction of the Court of Appeal (CoA), as provided in Article 177 (4).
“The wording and operation of Article 177 (4) operates as a complete bar to any appeal to the CCJ. Once the CoA has exercised its jurisdiction pursuant to Article 177 (4), its decisions are final and cannot be subject to review, except by the CoA similarly exercising powers under Article 177 (4),” the Trinidadian Senior Counsel explained.
Article 177 (4) of the Constitution confers on the Court of Appeal an exclusive original constitutional jurisdiction “to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election, or the interpretation of this Constitution.”
In representing the interest of Joseph Harmon, the A Partnership for National Unity + Alliance For Change (APNU+AFC) Agent, Senior Counsel Reginald Armour told the CCJ that in addition to Article 177 (4), the Agreement, under which it was established, and the Caribbean Court of Justice Act limit its jurisdiction.
In support of his position, Armour alluded to Article XXV (5) of the Agreement, which 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.”
Though Ali and Jagdeo, through their lead attorney, Senior Counsel Douglas Mendes, 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). He submitted to the Court that the Constitution and Laws governing the CCJ are pellucid.
“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 said while referencing both the Agreement under which the CCJ was established and Guyana’s Caribbean Court of Justice Act.
To further support his position, Armour alluded to a lecture given by CCJ Judge Winston Anderson in 2013 at the Norman Manley Law School, in which the limitation of the Caribbean Court of Justice was recognised.
“If issues cannot be appealed to the CCJ, the CCJ cannot consider them, and if the CCJ cannot consider them, then they cannot be included in the building blocks of the Court’s jurisprudence. It is that simple. What we end up with is a jurisprudence that is limited in scope. But there is very little, if anything, that the CCJ can do to change this situation…” he quoted Justice Anderson as saying while lecturing on the topic, ‘The Caribbean Court of Justice and the Development of Caribbean Jurisprudence.’
Guyana’s Attorney-General, Basil Williams, in putting forward a similar line of argument, pointed to Section 4 (3) of the Caribbean Court of Justice Act, which states, “Nothing in this Act shall confer jurisdiction on the Court to hear matters in relation to any decision of the Court of Appeal which at the time of entry into force of this Act was declared to be final by any law.”
He submitted that the exclusive jurisdiction of the Court of Appeal is guaranteed by both the Constitution and CCJ Act.
“It is submitted that Section 4 (3) preserves the jurisdiction of the Court of Appeal, and has overriding effect over any other provision in the CCJ Act. Through the use of the words ‘Nothing in this Act shall confer jurisdiction on the Court…’, the Parliament of Guyana saved the law which speaks to the exclusive jurisdiction of the Court of Appeal and reaffirmed the Court of Appeal as the only Court to adjudicate on those matters stated in Article 177 (4),” Williams told the Court.
He explained that while the Caribbean Court of Justice Act clothes the CCJ with both an original and appellate jurisdiction, the exclusive jurisdiction of the Court of Appeal is preserved under Section 4 (3) with regards to cases brought under Article 177 (4). From all indications, he said, the decisions made by the Court of Appeal under Article 177 (4) are final.
He noted that while Sections 6 and 8 of the Caribbean Court of Justice Act deal with matters of procedure with respect to appeals to the Court, those sections are subject to Section 4 (3), which is the substantive provision under the rubric of the “Jurisdiction of the Court.”
While Mendes, in his submissions, agreed that the CCJ cannot hear an appeal to the Court of Appeal’s decision made under Article 177 (4), he has argued that on June 22, the Court of Appeal did not make a decision under Article 177 (4), because it had no jurisdiction to do so.
But this contention was rejected by Jeremie, Armour and Williams. In their submissions, they made it clear that the Court of Appeal did nothing more than interpret Article 177 (2) (b) as provided for in Article 177 (4).
Antigua and Barbuda’s Queen’s Counsel, Justin Simon, who appeared in association with the Attorney-General, explained that the core of David’s Motion was for an interpretation of Article 177 (2) (b), which outlines the procedure for the election of a President. He pointed out that the Court of Appeal, in its decision, simply interpreted the words “more votes are cast” to mean “more valid votes are cast.”
“This was the specific relief which was given, because there were no coercive orders made by the Court of Appeal. And in giving that interpretation, the Court of Appeal was looking at the broad meaning of the words which were used in Section 96 of the Representation of the People Act. It is our respectful contention, therefore, that what was sought was an interpretation of a Constitutional provision, and as such, we submit that…Article 177 (4) gives to the Court of Appeal, in no uncertain terms, the exclusive jurisdiction to hear the motion which had been filed by the first respondent,” the Antigua and Barbuda Queen’s Counsel submitted to the court. He iterated that on the basis that the decision was made under Article 177 (4), it is final.
Jurisdiction aside, he asked the judges what is the harm in giving a liberal interpretation of the words identified by David in Article 177 (2) (b). Amid contentions by Jagdeo and Ali’s attorneys that David’s case ought to have been filed in the High Court via an Elections Petition, Queen’s Counsel Simon turned the CCJ’s attention to the case, Reeaz Holladar v the Returning Officer, in which the Court adjudicated outside of an Elections Petition, albeit that the issue arose during the elections process. Reference was also made to the case Ulita Moore v the Guyana Elections Commission (GECOM), which was also filed and adjudicated upon during the ongoing elections.
In an opinion piece seen by the Guyana Chronicle, Grenadian Queen’s Counsel, Dr. Francis Alexis said that not only was the Court of Appeal correct in establishing jurisdiction, but also in its interpretation of the Constitution. Dr. Alexis submitted that both the Constitution and the Representation of the People Act provide for election of a President based on valid votes.
“The mantra of Article 162(1) (b) of the Constitution and its constitutionalising the ROPA (Representation of the People Act) whose section 96(1) requires that there be calculated ‘valid votes’ is that a person be elected as the President on the basis of only valid votes,” the Constitutional Queen’s Counsel said.
He said to assume jurisdiction would be to overrule the constitutional provisions provided for in Articles 177 (4) and 162 (1) (b).
“A final appellate court, as is the CCJ, undoubtedly has a wide inherent jurisdiction to grant special leave to appeal to it. But such a court does not grant such leave when doing so would overrule constitutional provisions. Granting such special leave in this case would involve the CCJ overruling both Article 177(4) of the Constitution which makes the ruling of the Court of Appeal ‘final’, and Article 162(1)(b) of the Constitution constitutionalising the command in Section 96(1) of ROPA that what is calculated is the total number ‘valid votes’. CCJ should not thus overrule both those provisions of the Constitution,” Dr. Alexis reasoned.
He said that from all indications, the appellants have no real prospect of success in an appeal, on the basis that the decision of the Court of Appeal is final, and based on the undeniable fact that Article 162 (1) (b) of the Constitution and the Representation of the People Act mandate a calculation of valid votes. The application for special leave to appeal, he said, should therefore be refused.
Queen’s Counsel Dr. Richard Wilson, who also wrote an opinion piece on the case before the CCJ, drew distinction between Article 163 and Article 177 (4). Notably, the Constitution, under Article 163, gives the High Court exclusive jurisdiction to determine any question regarding the qualification for election as a member of the National Assembly and equally important, whether an election was lawfully conducted or its result affected by any unlawful act or omission. No mention, Dr. Wilson pointed out, was made on the election of a President.
“…conspicuous by its absence in Article 163 is any mention of questions dealing with the interpretation of the Constitution relating to an election of [a] President. Nor is there any provision that expressly grants the High Court jurisdiction in relation to the interpretation of the Constitution on any such question,” Dr. Wilson reasoned.
Unlike Article 163, the Law Professor said clear mention was made of the election of the President in Article 177. In fact, there are four Articles in the Constitution – 91, 95 (3), 177 and 183 (3) (c), that touch on the issue of an election of a President, however, only Article 177 (4), provides for the determination of any question relating to the validity of an election of a President, in so far as that question depends upon an interpretation of the Constitution.
“The silence in Article 163 on determination of any question as to the validity of an election of a President in so far as that question depends on the interpretation of the Constitution; the express provision in Article 177 (4) mandating the exclusive jurisdiction of the Court of Appeal to hear and determine such questions; and the absence of any provision elsewhere in the Constitution that purports to deal with the interpretation of the Constitution in relation to the validity of an election of a President,” Dr. Wilson said, cannot be ignored.
He added: “It is reasonable to conclude that the legislative intention must have been that the Court of Appeal, and not the High Court, would have exclusive jurisdiction on all such questions pursuant to Article 177 (4).”
Dr. Wilson iterated that under Article 177 (4), the Court of Appeal has exclusive jurisdiction to hear and determine question as to the validity of an election of a President in so far as that question depends on the interpretation of the Constitution and not the High Court.