CMC – The Caribbean Court of Justice (CCJ) will rule on July 8 whether or not it has jurisdiction to hear an appeal filed by two senior members of the main opposition People’s Progressive Party/Civic (PPP/C) in relation to a Court of Appeal ruling regarding the disputed March 2 regional and general election in that country.
“We also appreciate the need for expedition on our part. Naturally we would want to read and assimilate all the submissions that have been made and the authorities as best as we can and try to juxtapose the need to do that with the need for expedition,” Justice Adrian Saunders, the CCJ President said at the end of a day of oral submissions by all the lawyers involved in the matter.
He said that all five judges on the panel had already consulted among themselves “and we are optimistic that we will give a judgement in this matter next Wednesday at 3.00 pm (local time)….that is the 8th of July,” he added.
Guyana’s Opposition Leader, Bharrat Jagdeo, and Irfaan Ali, the PPP/C presidential candidate filed the appeal before the CCJ for several reliefs, including an interpretation of the words ‘more votes are cast’ in Article 177(2)(b) of the Constitution of Guyana.
The Court of Appeal in its decision late last month ordered that the words are to be interpreted as meaning ‘more valid votes are cast’. The Court also ordered the decision be stayed for three days. The applicants, who were added as respondents before the Court of Appeal, claim that the decision was wrong for many reasons, including that the Court of Appeal did not have the jurisdiction to hear and determine the Notice of Motion.
But Trinidadian Senior Counsel, Reginald Armour said that the CCJ is not a court of “unlimited jurisdiction.
“It is a regional Apex Court presiding over signatory sovereign member states and derives its jurisdictions and powers solely on the terms of its formative treaty, that is to say the agreement establishing the Caribbean Court of Justice.
“Accordingly any consideration as to whether this court has jurisdiction on this intended appeal must start we submit and ends with the true interpretation of the terms of the agreement and in particular article 25(5) and read alongside the Caribbean Court of Justice Act 2004 and the Constitution of Guyana,” said Armour, who is representing Joseph Harmon, the campaign manager of the ruling coalition, A Partnership for National Unity (APNU).
Armour told the five-member panel of judges that this consideration is paramount and must take place from an international law perspective “notwithstanding we are sitting in the courts appellate jurisdiction since the interpretation of treaties requires the application of different legal principles from those applicable in domestic courts”.
He said that the court must therefore look to article 31 of the Vienna Convention on the law of treaties “as it has done many times before in its original jurisdiction”.
Armour said that during the parliamentary debate in 2004 when Guyana was moving towards the CCJ and making it part of domestic law “the language of the lead proponent of the bill, the honourable attorney general Doodnauth Singh and other members of Parliament were very clear in acknowledging the language…which recognised the finality and the exclusive jurisdiction of the Court of Appeal of Guyana even while this court was being entrenched as the Apex Court”.
Armour insisted that the motion filed by the opposition cannot be entertained for want of jurisdiction and must be dismissed.
“When we turn to the merit… we say that for this court to set aside without prejudice to our arguments on no jurisdiction, for this court to set aside the decision of the Court of Appeal, you will have to satisfy yourselves that the Court of Appeal was plainly wrong…on the language and reasoning process on the decisions which we now have,” Armour argued.
But another Trinidadian Senior Counsel Douglas Mendes, who is representing Jagdeo and Ali, told the CCJ that the matter was one for an election petition since the election in itself had not yet been completed and no winner had been officially declared.
He said the Guyana Constitution provides for raising a question about the “validity of an election of a president is to raise that question after the election has occurred.
“That of course did not happen in this case and we respectfully say the Court of Appeal as a consequence ought not to have accepted jurisdiction to determine the question that was before the court”.
Mendes argued that the CCJ has jurisdiction to hear the matter, saying “the first thing I would like to submit in that in interpreting those provisions and thereby determining what the exclusive jurisdiction of the Court of Appeal is we must also bear in mind other provisions of the Constitution that vests exclusive jurisdictions in other courts.
“And of course in this particular instance we must bear in mind article 163 vets exclusive jurisdiction in the High Court under a separate code and the jurisdiction that is vested in the High Court would be a jurisdiction…to determine the validity of an election.
Mendes said he is asking the CCJ to allow the appeal of his clients and that the motion be dismissed “because the Court of Appeal never had jurisdiction in the first instance to make any of its pronouncements.
‘That ought to be made clear that none of its pronouncements can stand because it had no jurisdictions to make them to enter into the inquiry into the first place,” Mendes said.
“The question is what decisions are to be declared final under the laws of Guyana. That is the question we have to ask and the only way we could answer that question is by looking at article 177 (4) to see what decisions are declared to be final.
He said under that article, it says “that decisions made under this article are declared to be final.
‘So we have first to determine whether the decision which the Court of Appeal made was a decision under article 177 (4). If it is a decision made under article 177(4) then this court has no jurisdiction, but what we have submitted…is that the decision the court made and indeed the proceedings themselves were asking the court to make decisions that did not fall under 177(4).”
Armour, whose arguments were adopted by other attorneys representing other opposition political parties, said that the jurisdiction the Court of Appeal has under 177 (4) “is to determine questions as to the validity that depends upon the interpretation of the Constitution.
“So if it determines a question as to invalidity which dependent upon the interpretation of something else other than the Constitution then that is not a decision under 177 (4) and therefore it is not a decision that this caught by the finality clause in 177(4),” Armour argued.
Armour said a look at the CCJ legislation “we see that you have jurisdiction in relation to questions concerning the interpretation of the Constitution, you have jurisdiction on special leave in relation to all civil matters, it doesn’t say what type of civil matters…and of course you also have jurisdiction in relation to matters that are of great public importance with the leave of the Court of Appeal”.
But Senior Counsel and former Trinidad and Tobago attorney general, John Jeremie, who is representing the private citizen, Eslyn David, who brought the matter before the Court of Appeal last month, countered, insisting that the CCJ is without jurisdiction to rule on the opposition members.
He said that even if it is found that the Appeal Court did not have jurisdiction to hear the Eslyn David vs Guyana Elections Commission (GECOM) matter, the CCJ still cannot entertain that appeal.
Jeremie, who is leading a battery of lawyers, argued that the Apex court in this instance cannot hear the matter and cannot trample on the exclusivity of the Court of Appeal.
Jeremie said that he did not share Mendes’ arguments that the issue should have been settled by the High Court first and then through an election petition, saying the application to the Court of Appeal was simply for the court to determine the interpretation of the words “more votes cast” as is set out in Article 177 (2) (b) of the Constitution, particularly since the matter relates to the election of a president.
“I say the Court of Appeal had jurisdiction. But even if I am wrong, I am saying that this court lacks the jurisdiction to entertain this appeal because the clear intendment of the Constitution and the agreement is that disputes of this type end in the Court of Appeal even if the Court of Appeal was wrong on the question of Jurisdiction,” Jeremie told the court, citing two cases; one addressing the matter of jurisdiction and the other the meaning of the election of a president.
He said in the Eusi Kwayana 1980 application, the Court of Appeal acting as the final court, spoke to the issues that can be properly dealt with and the qualification of the president or the interpretation of the constitution.
“Those words do not require any interpretation. They are the words of the final court of appeal in Guyana. The case tells us how the section is to be construed,” Jeremie said, referring also to the Narayan Bashkao case of India, showing authority on the meaning of the elections of a president.
According to the Trinidadian lawyer, the word has a long usage in connection with the process of selections of proper representatives in democratic institutions. In the narrow sense, he said, it is used to meet the final selection of a candidate which may embrace the result of the poll.
He said in the wider sense of the word is used in the wide process, culminating in a candidate being declared president. In this regard, Jeremie said a president does not have to be first elected before Article 177 (4) comes into play.
Responding to a hypothetical question from Justice Jacob Wit that if the Court of Appeal in its ruling had determined that the elections were to be considered by the term “more invalid votes cast,” if it would still be correct in jurisdiction, Jeremie said that as strange as that may be, the Appeal Court’s decision would still be final.
“In respect of the sovereign pronouncements by the Guyanese parliament in enacting the CCJ Act and in respect of the provisions of the Constitution, on the authority as silly as that proposition is, this court has no jurisdiction to trespass on that once it is the provisions of Section (4) (3) are there and once the provisions are cast in terms of the constitutional provision,”.
“That is the result which deeming provision contained in the constitution dealing with exclusivity and finality and the conjoined effect of the CCJ Act Sect 4, which is the conclusion that we are drawn to. It is a position which is well settled by authority and which has never been a subject of rebuke,” he added.