CCJ Rules in Favor of Opposition in Election Appeal

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Justice Adrian Saunders

By Peter Richards

PORT OF SPAIN, Trinidad, Jul 8, CMC – Guyana’s disputed March 2 regional and general election took a step towards the official release of the results after the Trinidad-based Caribbean Court of Justice (CCJ) Wednesday unanimously upheld a motion filed by two senior members of the main opposition People’s Progressive Party/Civic (PPP/C) challenging a ruling of the Court of Appeal in that country.

The five-member panel headed by its President, Justice Adrian Saunders said that the Court of Appeal in Georgetown had no jurisdiction to hear the matter that had been filed by the private citizen Eslyn David.

“The finality clause in article 177(4) was inoperable and under the laws of Guyana this Court had jurisdiction to hear and determine the application by.. Ali and Jagdeo and to set aside the decision of the Court of Appeal.

“This Court was also entitled and required to declare invalid the report issued by the Chief Elections Officer (Keith Lowenfield) which was based on the decision of the Court of Appeal. It follows that the appeal of … Ali and Jagdeo succeeds,” Justice Saunders added.

The CCJ, the country’s highest court, last week heard the appeal filed by Opposition Leader Bharrat Jagdeo and Irfaan Ali, the PPP/C presidential candidate seeking 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 majority 2-1 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.

David had mounted her challenge before the appellate court pursuant to Article 177 (4) of the Constitution, which states “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….”

In the ruling Justice Saunders said that the nature of David’s concerns and the issues she placed before the Court of Appeal “that the questions raised by her did not depend on the qualification of any person for election or on the interpretation of the Constitution.

“Miss David’s concerns were really about the impact of Order 60 and about the conduct of GECOM. What the Court of Appeal majority did was to embark upon an exercise of interpreting Order 60. The Court of Appeal majority considered the effect of Order 60 on the responsibilities of GECOM and then applied that to the clear words of article 177 (2b) …which in fact required no refinement.

“That article in plain and simple language has always said what it meant and meant what it said. There is no need for an interpretation of that article or any other article of the Constitution. Accordingly there was nothing in Miss David’s application to trigger the Court of Appeal’s jurisdiction under article 177 (4). The Court of Appeal lack jurisdiction to make the orders that were made. Those orders were not made under article 177 (4) of the Constitution,” Justice Saunders added.

The PPP/C has said it won the last elections based on the national recount that ended on June 9. But the ruling coalition, A Partnership for National Unity (APNU) said that there were several irregularities and anomalies and wants the polls to be annulled.

In delivering the ruling, Justice Saunders said that special leave is granted to the applicants to appeal the decision of the Court of Appeal dated June 22nd 2020, the appeal of the appellants and that the decision of the Court of Appeal “without jurisdiction is invalid, it is of no effect.

‘The Court also declared that the report of the Chief Elections Officer of 23 June 2020 is similarly of no effect,’ Justice Saunders said.

Lowenfield had used the Court of Appeal ruling to release his official report to the Guyana Elections Commission (GECOM) in which he removed more than 100,000 votes claiming them to be invalid and giving victory to the APNU in the disputed election.

Justice Saunders said that the CCJ did not consider the issue of costs, but noted “it is prepared to hear counsel on that issue by written submission…within two weeks of today’s date”.

In his 30 minutes summary of the ruling, Justice Saunders said that “the Court reminded itself that its jurisdiction had been invoked for the sole purpose of determining whether the Court of Appeal lacked jurisdiction to entertain Miss David’s application and to make the orders that it made.

‘Once we decided that the Court of Appeal order was made without jurisdiction and should therefore be set aside there was nothing left upon which this Court would possess jurisdiction to make any further consequential orders,” Justice Saunders said.

He said to accept the counsel suggestion that to proceed down that path “would be to engage in an exercise not dissimilar from the one embraced by the Court of Appeal’s majority and which we have issued”. Justice Saunders said it is now left to GECOM to ensure that Lowenfield submits a report “in accordance with his directive of 16th June in order to proceed along the path directed by the laws of Guyana.

‘As Guyana’s final court, the Court stated that it could not however in all the circumstances pretend to be oblivious to events that transpired in that country since December 2018. Indeed the Court had to pronounce on some of those events.

“It has been four months since the elections were held and the country has been without a Parliament for well over one year. No one in Guyana should consider this to be a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy. Now the law must run its course,” he said, noting that the judgement of the Court was a “unanimous one”. – CMC

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