Caribbean News Politics

Court of Appeal rules in latest election court battle

The Court of Appeal Thursday unanimously dismissed an appeal against a ruling in a lower court and gave the appellants one day to decide on their next move as the challenges to the disputed March 2 regional and general elections seem now to be nearing an end.

Three-member panel in a near three hour ruling, also agreed that most of the challenges raised during the appeal heard last Saturday were res judicata meaning that they were matters that had been adjudicated by a competent court and therefore may not be pursued further by the same parties.

Justice Dawn Gregory-Barnes said agreed that the High Court could have exercised the jurisdiction that it did in smoothing out the process in analysing the roles that are to be performed under Article 177 (2) (b) Section 99 and Section 18 of the Election Laws Amendment Act (ELA)

“In my view the jurisdiction was correctly exercised,” she said, adding “So I would dismiss the appeal and my full reasons will be incorporated in my written judgement and so I would dismiss the appeal of the appellant as well as the fourth named respondent, the Attorney General (Basil Williams SC).”

The appellant, Misenga Jones, had appealed the July 20th ruling of Chief Justice Roxanne George on the grounds that she had had erred in her judgement.

Jones had challenged the Guyana Elections Commission’s (GECOM) move to make a declaration of the March 2 elections, using votes tabulated by the national recount process, which she said was ruled unconstitutionally by the Caribbean Court of Justice (CCJ) on July 8.

Jones had also argued that Section 22 which was relied on for the crafting of the Order 60 of 2020 of the National Recount Order was unconstitutional, in contravention of Article 170 of the Constitution, as it empowered the Commission to craft a law when it remains a non-legislative body.

Jones had named Williams, the chairman of the Guyana Elections Commission (GECOM), retired justice Claudette Singh, the Chief Elections  (CEO) Officer, Keith Lowenfield as the main respondents, but the High Court had allowed eight others including Opposition Leader Bharrat Jagdeo and the presidential candidate of the main opposition People’s Progressive Party/Civic (PPP/C) Irfaan Ali to be respondents.

All three judges – Justices Rishi Persaud, Dawn Gregory-Barnes along with Justice Priya Sewnarine – provided separate rulings, but all agreed on the need to dismiss the appeal, noting that the appeal was the fourth court matter since the elections were held.

In her ruling Justice Gregory-Barnes said she would allow the cross appeal in part by Jagdeo and Ali “to the extent that they are of the view that the High Court (did not have jurisdiction)…my view that the High Court had a very narrow jurisdiction and might have overstepped that jurisdiction in some of its findings and so to the extent that they say that that jurisdiction was exceeded, I would allow the appeal in part”.

The Court of Appeal held that it did not agree that the High Court had no jurisdiction to inquire into any of the issues except the role of Section 18 of the Electoral Law Amendment Act, noting however that there was evidence “as there is in this case that the election process must be protected”.

It said other local examples existed where the High Court intervened during the electoral process “to ensure that the process operated lawfully”.

One of the matters on appeal was that the GECOM chairman had to follow the advice given to her by Lownefield and act upon it.

Williams had argued that the Chief Justice erred and misdirected herself when she interpreted the provisions of Article 177: 2 (b) and that those words are not in that Article but the opposite, whereby the Article advises the chief elections officer to act alone in his advice to the Commission.

“The words in 177: ‘shall and acting only in accordance to the advice,’ are mandatory and have three mandatories advise or commands, and is a simple natural grammatical literal meaning of Article 177: 2 (b),” Williams said.

But the Court of Appeal disagreed with Justice Sewnarine noting that Lowenfield had to prepare his report in accordance with the national recount and that the order from the GECOM chairman to him “must be treated as “valid lawful directive which the CEO is required to obey by virtue of Section 18 of the Electoral Law”.

Lowenfield had earlier disregarded a letter from Singh to provide the Commission with the results of the national recount so as to declare a winner in the disputed polls which both the PPP/C and the ruling coalition, A Partnership for National unity (APNU) said they had both won.

“The chief elections officer must abide by the directions of GECOM and or its chairperson and prepare his report as required by Section 96 of the Representation of the People’s Act (ROPA) using the recount numbers,” Justice Sewnarine, said, noting that the results provided by Lowenfield on March 13 were “without merit” recalling the ruling by the Caribbean Court of Justice (CCJ), the country’s highest court, regarding the validity of the recount votes.

She said that the issues raised by Jones regarding the “constitutionality of Section 22, the validity of Order 60, the recount results are res judicata.

For his part Justice Persaud said that Section 18 of the ELA “recited in Order 60 specifically provides that the CEO shall, notwithstanding any written law be subject to the direction and control of the Commission, and if I may add, only the Commission.

“Clear and unambiguous language,” he said, noting that Section 19 of the ELA provides for the removal of any doubt it is hereby declare that the power of the Commission to supervise the functioning of any election…shall include the power to issue directions to any such officer. The CEO falls within the definition of an elections officer

“Simply put the CEO is an employee of the Commission,” he added.

On the issue of costs, the Court of Appeal asked that submissions be made within three days, even as the attorneys for many of the respondents asked that a two million dollar (One Guyana dollar=US$.004 cents) tag be slapped on the appellant.

CMC

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