By Dr. Vishnu Bisram
Reference is made to a missive (Jamaica Gleaner July 7) by Mr. Imran Khan, public relations officer of the (Prime Minister) government of Guyana wherein, citing a finality clause of the Guyana constitution, he contends the Caribbean Court of Justice (CCJ) has no jurisdiction to visit the ruling of the Court of Appeal (CoA) of Guyana. Khan is plain wrong; he misreads and or misunderstands the finality clause.
As an officer of the government, in penning the missive he sought to influence the ruling of the Caribbean Court of Justice (CCJ) in a matter currently before the court with a judgment due by Wednesday afternoon. This is an attempt to subvert justice. A full page advertisement of similar import was published the Trinidad Guardian on Sunday (July 5). Similar arguments were made by agents and lawyers of the Guyana government in Caribbean press and in social media. Such attempts seek to pervert the rule of law and violate basic principle of due process and the independence of a court. The publicity and public relations stunts are tantamount to the executive arm of the state attacking the judiciary in what is supposed to be separation of powers in which they are not supposed to trample upon each other’s jurisdiction. The court is the final arbiter of the law and its rulings must be obeyed. The missives and ads of the government and their agents must be condemned and not entertained by the public or by any officer of any court.
The missive of government officers and their agents violates the basic rule of impartial justice — the foundation stone of the judicial process called the sub judice principle. Any matter before the court cannot be commented upon by the parties of the dispute or their agents in a manner that would prejudice a ruling of the court. The state, in particular, ought to know better than seek to influence the court.
Khan’s missive simply misreads and misunderstands the jurisdiction of the CCJ (the apex court) over the Court of Appeal (a Superior Court) of Guyana as it relates to the finality clause (Art 177.4). The CCJ is the apex (final) court and has jurisdiction over the Court of Appeal (Superior Court) of Guyana on all matters except where so specifically (finality clause) stated.
The finality clause was passed in 2004. The clause was/is specific. It states that all matters already litigated by the CoA was final and could not be appealed to the CCJ. The law was very literal in its meaning. All matters already decided or before the CoA would end there. All matters brought to and decided by the CoA post April 2005 (when the law would take effect) could be appealed at the CCJ. That was the simple and ordinary meaning of the law when it was enacted in 2004; this meaning of the law was related to me by Members of parliament who are still around. So clearly, the CCJ would have jurisdiction over appeals decided by the CoA as per that law.
In addition to the jurisdictional issue before the CCJ, there is also the issue of whether the CoA itself had jurisdiction to hear an election matter. Khan’s government petitioned the CoA on the March 2 election matter to determine the meaning of the term ‘more votes cast’. The opposition PPP contended that the CoA had no such jurisdiction. The law states that the CoA only has jurisdiction to determine if a candidate meets the qualification to run for President. The opposition claims that any election matter must by addressed by the High Court in an election petition (as so stated in the constitution) and not the CoA. The opposition also argued that a petition or challenge to the eligibility of a candidate to serve as President could only be filed after a declaration of the result. The elections commission is yet to make a declaration and an official winner is not announced.
The CoA (under Art 177.4) made a ruling that it had jurisdiction to define what is meant by ‘more votes’ by adding the word ‘valid’ in front of it. The government sought a number of orders from the CoA but none were granted. The CoA ruling was considered to be final.
But the ruling was appealed by the opposition party to the CCJ. There is a legal principle that even if the ruling of a superior court is final, if it violates jurisdictional issues, the apex court (CCJ) can overturn it. Also, if a superior court rules beyond its remit, the apex court can review its ruling. These are standard jurisdictional issues, all of which have precedents. The CoA claimed jurisdiction to hear the appeal under 177.4; this article applies to qualification of a person to serve as President. It has noting to do with ‘more valid votes’ cast. The qualification of any candidate to run for President was never challenged. So the CoA lacked jurisdiction to hear the matter and further went out of its remit to make a ruling. Thus, the CCj would overturn its ruling.
In addition to above points, the CCJ has original jurisdiction on some matters. The fundamental rights of Guyanese voters are violated. An attempt is being made at electoral fraud to disenfranchise 115,844 voters. This is a fundamental issue of natural rights being violated as pertains to democracy. That in itself gives an apex court the right to revisit the ruling of a lower or superior court. The Privy Council and Supreme Courts of US, India, Canada, UK, Australia, South Africa, etc. have all assumed jurisdiction over the rulings of superior courts on electoral matters or basic rights.
So clearly the CCJ which is the apex court of Guyana has jurisdiction over the ruling of CoA on a variety of points. It is my humble interpretation of the laws of Guyana and from the questioning line of the CCJ judges of oral presentations a week ago that the court would assume jurisdiction (with a Marbury V Madison kind of principle) and set aside the CoA ruling. Such a ruling would empower the CCJ with judicial review of regional members.
* NOTE: (This article was sent to the Jamaica Gleaner for publication prior to the CCJ’s ruling. On Wednesday Jul 8 afternoon, CCJ ruled that ‘the finality clause’ is valid but that the CoA lacked jurisdiction in hearing the matter reversing its judgment. Dr. Bisram studied and taught American constitutional law and international law for three decades).