Written submissions on behalf of the applicant

By John Jeremie S.C; Roysdale Forde; Mayo Robertson and Keith Scotland

FACTUAL BACKGROUND

1. These Submissions are filed by the Applicant and address the Application filed by the Applicant under Article 177(4) of the Constitution of Guyana seeking an interpretation of Article 177(4) (b) the Constitution.
2. The Guyana Elections Commission after contentions arose concerning the credibility of the Declarations which were made by the ten (10) Returning Officers of the ten (10) Electoral Districts decided that there should be a recount of the Ballots cast at the 2nd March, 2020 General and Regional Elections.
3. The Guyana Elections Commission pursuant to Article 162 of the Constitution of Guyana and section 22 of the Election Laws Amendment Act issued an Order which was duly Gazetted and dated 4th May, 2020 and later amended by an amending Order dated the 29th of May, 2020. These Orders are exhibited as Exhibits “A” and “B” respectively to the Affidavit in Support of the Notice of Motion.
4. During the Recount, the Guyana Elections Commission were written Letters by the A Partnership for National Unity + Alliance For Change, Election Agent, Mr. JOSEPH HARMON in which he pointed out numerous discrepancies and anomalies which impacted on the credibility of the Elections. Some of these Letters are exhibited as Exhibit “C” to the Affidavit in Support of the Notice of Motion.
5. Mr. Joseph Harmon, wrote a Letter dated the 20th day of May, 2020, to the Guyana Elections Commission confirming that in a meeting between the Guyana Election Commission and A Partnership for National Unity + Alliance For Change that the Guyana Elections Commission had confirmed that the credibility of elections was a critical component of the National Recount as provided for in the Gazetted Order which provided for the National Recount.
6. On the 13th day of June, 2020 the Chief Elections Officer submitted his Report as required by Paragraph 12 of the Order No. 60 of 2020 in respect of each of the 10 (Ten) Electoral Districts. That in each of the Reports for the said Electoral Districts the Chief Elections Officer stated:
   “Finally, the summation of anomalies and instances of voter impersonation identified in Districts [1 to 10] clearly does not appear to satisfy the criteria of impartiality, fairness and compliance with provisions of the Constitution and the Representation of the People Act, Chapter 1:03. Consequently, on the basis of the votes counted and the information furnished from the recount, it cannot be ascertained that the results for the Districts [1 to 10] meet the standard of fair and credible Elections.”
7. On the 16th day of June, 2020, the Elections Commission stated that it did not have the legal authority to determine the credibility of the March 2, 2020, General and Regional Elections and by extension to arrive at a final credible count as required by the aforesaid Orders. A copy of the Statement delivered by the Chairman of the Guyana Elections Commission is exhibited as Exhibit “E” to the Affidavit in Support of the Notice of Motion.
8. The Elections Commission released a press Statement in which it stated inter alia:

“After considerable deliberations at the Commission on the report submitted by Chief Election Officer (CEO), Mr. Keith Lowenfield on the National Recount of votes cast in the 2nd March, 2020 General and Regional Elections, Chairperson of the Commission, Justice Claudette Singh has requested for the CEO prepare a report to ascertain the results of the elections under Section 96 of the Representation of the People Act, Chapter 1:03 and in keeping with Order No. 60 of 2020 and its addendum dated 29th May, 2020.”
A copy of the Press Statement is exhibited as Exhibit “F” to the Affidavit in Support of the Notice of Motion.

THE APPLICATION

9. The Application herein is filed pursuant to Article 177 (4) of the Constitution of Guyana.
   Article 177(4) provides-
   “The Court of Appeal shall have exclusive 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; and any decision of that Court under this paragraph shall be final.”
10. It is submitted that Article 177 (4) of the Constitution confers the Court of Appeal with a unique, 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.”
11. In this Application the Court of Appeal has been asked to interpret Article 177(2) (b) of the Constitution of Guyana and in particular the words “if more votes are cast.” Article 177(2)(b) provides:
    “Where …there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.”
12. The Application raises before this Court, the interpretation of Article 177(2) (b) of the Constitution of Guyana. The issues which arise for the Court’s consideration are:
    i) Whether having regard to the decision of the Guyana Elections Commission to undertake a recount to determine the credibility of the March 2nd, 2020 General and Regional Elections the process set out in the Orders providing for the Recount has 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 as contemplated by Order No. 60 of 2020?
    ii) Whether the Chief Elections Officer is to advise in respect of the Presidential Candidate who has been named on such a list which has received more votes than any other list?

iii) Whether the Chief Elections Officer can advise the Elections Commission in respect of the Presidential Candidate if the Elections Commission abdicates its responsibility to determine the credibility of the General and Regional Elections.

13. Prior to the issuance of the Recount Order No.60 of 2020 by the Guyana Elections Commission section 96 of the Representation of the People Act was the basis of the determination of the Results of an Election in so far as it related to the allocation of seats in the National Assembly.
14. Article 177(2) (b) of the Constitution operated on the same or similar basis as the Chief Election Officer who as a Constitutional Officer was empowered to advise the Chairman of the Elections Commission as to the Presidential Candidate that was deemed to be elected, such a Candidate having been named on a list which obtained more votes cast in favour of that list than any other list.
15. The Orders issued by the Elections Commission that ushered the Recount into being established a new and completely different legal regime.
16. It is important to note that the Elections Commission in issuing the Orders that ushered in the Recount resorted to Article 162 of the Constitution and Section 22 of the Elections Laws Amendment Act as the basis of the Recount.
17. In such circumstances, it would be correct to say that the Order established and expressed a new standard for the determination of the March 2, 2020 General and Regional Elections.
18. It is therefore submitted that though the Order expressly refers to Section 96 of the Representation of People Act, it implicitly had a direct effect on Article 177(2) (b) of the Constitution as it required the Election of the President to be similarly based on the declaration of the credibility of the Elections.
19. It is submitted that this conclusion is inescapable as the Electoral System of Guyana as set out in Articles 60, 160 and 177 conceives one composite election for members of the National Assembly and the President.
20. It is therefore submitted that the words “if more votes are cast” having regard to the Orders issued by the Elections Commission for the recount are to be read “if more valid and credible votes are cast.”
21. Thus, under Article 177(2) (b) of the Constitution, the Chief Election Officer is to advise the Chairman of the Elections Commission of the Presidential Candidate who has been named on such a list which has received more votes than any other list in accordance with the Constitutional structure and legal regime established by the Order Gazetted by the Elections Commission.
22. The advice of the Chief Election Officer under Article 177(2) (b) is in respect of a Candidate whose List has received more valid and credible votes than any other List.
    23. It is submitted that the Chief Election Officer cannot lawfully advise the Chairman in respect of a Presidential Candidate if the Election Commission abdicates its responsibility to determine credibility.
    24. The Chairman of the Guyana Elections Commission subsequent to the declarations by the Guyana Elections Commission that it had no legal authority to determine credibility in accordance with Order No. 60 of 2020 requested that the Chief Elections Officer submit his Report as required by section 96 of the Representation of the People Act Cap. 1:03.
23. The Chairman of the Guyana Elections Commission in letter to the Chief Election Officer dated the 16th day of June, 2020, wrote:
    “Pursuant to Article 177(2) (b) of the Constitution and Section 96 of the Representation of the People Act, Chapter 1:03 you are hereby requested to prepare and submit your report by 13:00 hrs. on 18th June, 2020 using the results of the recount for the consideration of the Commission.”
24. The Orders as Gazetted by the Guyana Elections Commission had as its objective the determining of a final credible count. See Recital Paragraph 3 of the Order dated the 4th day of May, 2020, Order No. 60 of 2020.
25. Order No. 60 of 2020 also established the methodology for the determination of the final credible count.
    The Orders required the following:-
    1. The reconciliation of the ballots issued with the ballots cast:
    (a) Destroyed,
    (b) Spoiled,
    (c) Stamped
26. And as deemed necessary their:
    (a) Counter foils/stubs
    (b) Authenticity of the ballots;
    (c) The number of voters listed and crossed out as having voted;
    (d) The number of votes cast without ID cards;
    (e) The number of proxies issued and utilized
    (f) Statistical anomalies
    (g) Occurrences recorded in the Poll Book.
    See Recital Paragraph 8 of the Order dated the 4th day of May, 2020.
27. Paragraphs 12 and 14 of Order No. 60 of 2020 stated:
    “12. The matrices for the recount of the Ten (10) Electoral District shall then be tabulated by the Chief Election Officer and shall be submitted in a report, together with a Summary of the observation reports for each Districts, to the Commission.
28. The Commission shall, after deliberating on the Report at Paragraph 11, determine whether it should request the Chief Elections Officer to use the data compiled in accordance with Paragraph 11 as the basis for the submission of a report under Section 96 of the Representation of the People Act Chapter 1:03.”
29. Paragraph 14 of Order No. 60 of 2020 was amended by the Order of the 29th day of May, 2020, Paragraph 14 as amended stated:
    “Paragraph 14 of the Order is hereby amended to read as follows:
    “The Commission shall, after deliberating on the Report at Paragraph 12, determine whether it should request the Chief Elections 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 Chapter 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 on the 2nd day of March, 2020.”
30. The scheme of the Order as Gazetted required the Chief Election Officer to submit to the Guyana Elections Commission, under Paragraph 12, a Report and the Commission shall then determine whether it should request the Chief Election Officer in accordance with Paragraph 12 to use such Report as the basis for the submission of a Report under section 96 of the Representation of the People Act.
31. It is submitted that the Guyana Elections Commission arrogated to itself the authority to determine whether the March 2, 2020 General and Regional Elections were credible and only if they were credible, could the Guyana Elections Commission use the data compiled in accordance with Paragraph 12 as the basis for the submission of a Report.
32. The Chief Election Officer in accordance with Paragraph 12 submitted to the Guyana Elections Commission ten (10) Reports in respect of the ten (10) Electoral Districts. These Reports are attached as Exhibit “D 1” to the Affidavit in Support of the Notice of Motion.
33. In the Reports submitted by the Chief Election Officer he states in respect of each of the ten (10) Electoral Districts that having regard to:

“….the summation of anomalies and instances of voter impersonation identified in Districts [1 to 10] clearly does not appear to satisfy the criteria of impartiality, fairness and compliance with provisions of the Constitution and the Representation of the People Act, Chapter 1:03. Consequently, on the basis of the votes counted and the information furnished from the recount, it cannot be ascertained that the results for the Districts [1 to 10] meet the standard of fair and credible Elections.”

34. The Guyana Elections Commission by a statement delivered by the Chairman of the Guyana Elections Commission declared that it did not have authority to rule on the credibility of the Elections. See Exhibit “E” to the Affidavit in Support of the Notice of Motion.
35. It is submitted that the failure by the Guyana Elections Commission to rule on the credibility of the Elections amounted to an abdication of a duty and obligation that it had assumed unto itself by Order No. 60 of 2020, a creation of the Elections Commission.
36. It is submitted that the failure to rule on the credibility of the Elections constituted a breach and or an abdication of the very basis of Guyana Elections Commission issuance of the very Orders for the Recount. It was under Article 162 that the Orders were issued , provisions which required the Guyana Elections Commission to “issue such instructions and to take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of [the] Constitution or of any Act of Parliament.”
37. The failure by the Elections Commission to determine credibility is of the nature of an omission that the Court of Appeal ruled in ULITA MOORE v THE GUYANA ELECTIONS COMMISSION et al Civil Appeal No.38 of 2020 that the Courts have jurisdiction to correct. The Court of Appeal by majority judgment stated:
    “[78] Section140 (1) must be construed as not ousting the supervisory jurisdiction where the Court is satisfied that a public body, in this case GECOM, acts as or is about to act outside or in excess of its powers. The clause is effective in excluding the Court’s jurisdiction and shielding from enquiry into their validity, those acts and omissions which are within a public body’s powers.

[84] We agree that the Anisminic jurisprudence and the reasoning of the Court in Re Gerriah Serran ought to be applied to section 140 (1) of the RPA. On those authorities, we hold the view that the High Court’s jurisdiction is not ousted by section 140(1) and can be exercised if the Court is satisfied that GECOM has exceeded or is about to exceed its powers by its acts or omissions.”

38. It is also submitted that the determination of credibility was a precondition to the use of the data referred to in Paragraph 14 of Order No. 60 of 2020.
39. It is submitted that to use the data referred to in Paragraphs 12 and 14 of Order 60 of 2020 necessitated that the Guyana Elections Commission found that it had satisfied the standard of credibility and this the Guyana Elections Commission did not do, as it found it had no legal authority to determine credibility.
40. It is submitted that the failure of the Guyana Elections Commission to determine credibility does not mean that the recount figures can be used to determine the results of the Elections.
41. The Letter to the Chief Elections Officer from the Chairman on its face requires that the Chief Election Officer does something that is not only illegal and ultra vires but absurd that is to say to submit the results of the recount for the consideration of the Commission in a Section 96 Report.
42. Section 96 of the Representation of the People Act Cap. 1:03 provides :
    “ (1) The Chief Election Officer shall, after calculating the total number of valid votes of electors which have been cast for each list of candidates, on the basis of the votes counted and the information furnished by returning officers under section 84 (11), ascertain the result of the election in accordance with sections 97 and 98.

(2) The Chief Election Officer shall prepare a report manually and in electronic form in terms of section 99 for the benefit of the Commission, which shall be the basis for the Commission to declare and publish the election results under section 99.”

43. It Is submitted that the Chief Election Officer is required after calculating the total number of valid votes of electors which have been cast for each list of electors on the basis of the votes counted and the information furnished by Returning Officers under section 84 (11) ascertain the results of the election.
44. It is upon the basis of votes counted and the information furnished by the Returning Officers that the Report is submitted to the Commission which forms the basis to declare and publish the elections results.
45. The Elections Commission in issuing Order No. 60 of 2020, did not set aside the Declarations made by the ten (10) Returning Officers and it is submitted that these ten (10) Declarations are valid. Further, the ten (10) Declarations of the Returning Officers by Section 84(2) of the Representation of the People Act are final.
46. It is therefore submitted that Order No. 60 of 2020 did not affect Sections 84 (2) and 96 of the Representation of the People Act and consequently the Chief Election Officer is required to act only in accordance with Section 96 of the Representation of the People Act to submit a Report under that Section.
47. It is therefore submitted that the determination by the Chairman under Paragraph 14 of the Order that the data compiled in accordance with Paragraph 12 of the Order be used as the basis of a Report is invalid.
48. In Reeaz Hollader V Returning Officer, Clairmont Mingo and others 2020 – HC- DEM- CIV – FDA 360, George C.J (ag.) on the 11th of March nullified the declaration made by the Returning Officer on 5th March, 2020 of the total votes cast for Electoral District 4 and ordered him to comply with the applicable law in ascertaining those votes.
49. It is submitted that Section 96 is valid and extant and cannot be said to have been amended or modified.
50. In R. v. Mercure, [1988] S.C.J. No. 11 La Forest J. wrote:

“ …[S]tringent tests …have been established to warrant a holding that a statute has been impliedly repealed. As the court put it in The India …a prior statute is repealed by implication only” if the entire subject-matter has been so dealt with in subsequent statutes that, according to all ordinary reasoning, the particular provisions in the prior statute could not have been intended to subsist….”

51. It is therefore submitted that valid votes within the meaning of Section 96 are votes which were ascertained by the Chief Election Officer on the basis of votes counted and the information furnished by the Returning Officers.
52. It is submitted that Order No. 60 of 2020 is inapplicable to Article 177 (2) (b) of the Constitution. The Order does not seek to affect it in any way.
53. It is submitted that under Article 177(2) (b) of the Constitution of Guyana the Chief Election Officer is empowered to determine valid votes cast in respect of the election of a President and to tender such advice to the Guyana Elections Commission.

CONCLUSION

54. Having regard to the foregoing, the relief sought by the Applicant ought to be granted.