ATTEMPTS by Leader of the People’s Progressive Party/Civic (PPP/C) List of Candidate, Bharrat Jagdeo to have Chief Elections Officer (CEO) Keith Lowenfield produce his Statements of Poll (SOPs) for District 4 failed on Friday when High Court Judge Franklin Holder refused his Application for Discovery.
Justice Holder’s refusal was on the grounds that the application ought to have been brought by way of an Elections Petition, after the declaration of the results for the elections.
In handing down his ruling in the High Court, Justice Holder explained that Jagdeo, through his application, intended to obtain information, so as to challenge the validity of the declaration of votes in District 4, and by extension the validity of the entire elections. He said that Article 163 (1) of the Constitution and the National Assembly (Validity of Elections) Act, when read together, allow for issues, such as those raised by Jagdeo, to be addressed by way of an Elections Petition.
“The question I find being asked by the applicant falls within provisions of Article 163, and by Section 3 of the National Assembly (Validity of Elections) Act, [and] must be brought by way of petition,” Justice Holder said.
He emphasised that any question relating to the accuracy of election results, the tabulation of SOPs, and declarations must be dealt with by way of an Elections Petition. An Elections Petition must be filed within 28 days of the declaration of the results of an election by the Guyana Elections Commission (GECOM).
“It is clear the main reason Mr. Jagdeo seeks the SOPs is for him to peruse, to persuade the court to engage in a comparative analysis of the SOPs in his possession, which he considers accurate, and those in possession of the CEO,” Justice Holder said.
He noted that Jagdeo’s Attorney, Senior Counsel Douglas Mendes, in his submissions, alleged that the declaration of the votes in District 4 was fraudulent, on the basis that the SOPs were inaccurate. These allegations, Justice Holder pointed out, raise the issue of whether the elections were lawfully conducted, or whether some unlawful act or omission had occurred in District 4, and as a consequence, the entire electoral process.
“These are issues which I find, are required to be dealt with by an Elections Petition, as prescribed for by Article 163 (1) (B) of the Constitution, and the National Assembly (Validity of Elections) Act. This Court cannot entertain the question as to validity of any election held generally or in any particular place,” the High Court Judge stated.
HOLLADAR ET AL MATTER
He pointed out that Chief Justice (ag) Roxane George-Wiltshire, in adjudicating in the case Reeaz Holladar v the Returning Officer, Clairmont Mingo and other, indicated that issues regarding the accuracy of the tabulation of SOPs in District 4 must be addressed by way of an Elections Petition.
In that judgment, the Chief Justice (ag) said: “There are aspects of the claim in this application whether Mr. Ramson was recognised as a counting agent for the PPP/C; whether an application for final count for District No. 4 was accepted or not; and whether what the applicant says are SOPs he has in his possession has the correct tabulation, are not for an application such as this.”
Justice George-Wiltshire had noted that those issues would be better canvassed in an Elections Petition. “I reconfirm my initial view that these matters would better be canvassed in an Elections Petition. I am not concerned with the votes cast for any of the parties,” the Chief Justice (ag) had said in her March 11, 2020 ruling. She had made it clear that the issue to be determined in the Holladar application was is a narrow one; a case of whether there has been compliance with Section 84 (1) of Chapter 1:03.
Justice Holder said the Courts have had consistent approach to decline jurisdiction to hear such complaints outside of an Election Petition. On that note, he cited a number of cases, including the case of Gladys Petrie and Others v The Attorney General and Others (1968). In that case, it was stated that any challenge to “the election process can only be conducted pursuant to an Elections Petition and before an election court.”
Added to that, Justice Holder said, as submitted by Trinidad Attorney-at-Law Keith Scotland, Section 19 of the National Assembly (Validity of Election) Act serves as a barrier to the Application for Discovery, as applied for by Jagdeo.
According to Section 19 of the National Assembly (Validity of Election) Act: “Any document or paper relating to an election, and required to be kept thereafter in safe custody of the Chief Election Officer under Section 102 of the Representation of the People Act, may be inspected or produced under an Order of the Court for the purpose of an election petition, and the order may be made by a judge on his being satisfied by evidence on oath that such inspection or production is required for the purpose aforesaid: Provided that the Chief Elections Officer shall, after the expiration of twelve months from the date of an election, burn all such documents and paper relating thereto.”
APPLICATION DENIED
It was on the foregoing grounds that Justice Holder refused the Application for Discovery. Scotland is among a battery of lawyers representing Ulita Moore, the private citizen who has asked the High Court to block GECOM from facilitating a National Recount of all the votes cast at the March 2 General and Regional Elections. Her other attorneys include Grenadian Queen’s Counsel, Dr. Francis Alexis; Attorneys-at-Law John Jeremie S.C., and Guyanese Lawyers Mayo Robertson and Senior Counsel Roysdale Forde.
Attorney-at-Law Kim Kyte-Thomas, the Legal Counsel representing the Chairman of GECOM Justice (Ret’d) Claudette Singh, had made similar submissions. “It is submitted that the production of the SOPs is not for an application such as this. These matters would better be canvassed in an elections petition,” Kyte-Thomas had told the High Court Judge in her written submission on behalf of the GECOM Chair.
The Chief Elections Officer was represented by Senior Counsel Neil Boston, while Attorney-at-Law Timothy Jonas appeared on behalf of A New and United Guyana (ANUG), the Liberty and Justice Party (LJP) and The New Movement (TNM), all added respondents in the matter.
