Appellate Court nixes CARICOM-led recount proposal

Justice Dawn Gregory

–establishes partial jurisdiction to adjudicate the matter

ANY agreement that usurps the powers of the Guyana Elections Commission (GECOM) to supervise elections in Guyana is unconstitutional, the Court of Appeal ruled on Sunday.
The ruling had to do with its allowing, in part, an appeal against the Full Court’s decision that the Court had no jurisdiction to hear the case brought by Ulita Moore, challenging the decision of GECOM to conduct a national recount under the supervision of the Caribbean Community (CARICOM).

“Any arrangement or agreement to relinquish supervision of any aspect of the elections whether the recount or any other aspect – any arrangement to relinquish that supervision and authority – would be an unlawful arrangement. GECOM must at all times remain the body constitutionally mandated to supervise [elections],” Justice of Appeal Dawn Gregory said as she handed down the ruling on Sunday in the Court of Appeal.

Justice, Rishi Persaud

Before addressing the substantive issue of jurisdiction, the Court of Appeal granted Moore leave to appeal the Full Court’s decision. The decisions were handed down by Justices of Appeal Dawn Gregory and Rishi Persaud, and High Court Judge Brassington Reynolds, in an appeal brought by Moore after the Full Court overturned an earlier decision that the High Court did have jurisdiction in the matter. That decision had been made by High Court Judge, Justice Franklin Holder.

In partially allowing Moore’s appeal on Sunday, Justice Gregory said:
“My order is to allow the appeal in a small part; I do not agree with the Full Court that everything was to be referred to the Elections Court. There was sufficient [evidence] before the High Court to trigger the constitutional supervisory jurisdiction, and so, with that exception, I would essentially dismiss the appeal.”
However, when asked by Attorney-at-Law Timothy Jonas whether Moore’s application still stands dismissed, as ordered by the Full Court, Justice Gregory responded in the negative, saying:

“The Court having ruled in her (Moore’s) favour, then it can’t be dismissed.” She however ordered that any agreement, in which the supervision of the elections is removed from GECOM and ascribed, or given, to any other authority would be unlawful.

Justice Gregory would, however, rule that the majority of the claims made by Moore in her Fixed Date Application (FDA) for Judicial Review are matters that ought to be addressed by an Elections Court by way of an Elections Petition. In her application, Moore contended that the Elections Commission, by failing to consider the report of the Chief Elections Officer, which would have led to the declaration of the President, was in breach of Article 177 of the Constitution, and Section 99 of the Representation of the People Act. But according to Justice Gregory, those actions are not automatic.

“It could not be that once a certain stage had been reached in the process that it was automatic that the process would move to Article 177 and Section 99 of the Representation of the People Act,” Justice Gregory said while emphasising that the claims, as contended by Moore, could not be sustained.

Further to that, Justice Gregory ruled that an order for a recount of all the votes cast at the March 2, 2020 General and Regional Elections under Section 22 of the Elections Law (Amendment) Act 2000 would not be unconstitutional. “That Order enabled the Elections Commission, as I saw it, to exercise the powers of the nature, which it was given by the Constitution,” Her Worship said, adding: “In my view, there was nothing unconstitutional about Section 22 of the Elections Law (Amendment) Act of 2000; in fact, it enabled arrangements to be made for the recount.”

Section 22 (1) states: “If any difficult arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.”

However, in Justice Gregory’s opinion, the High Court has ‘Supervisory Jurisdiction’ to determine whether the Elections Commission was acting outside of its constitutional made. “While the Commission must be allowed to perform its functions,” she reasoned, “certainly the High Court must have the powers, as well as jurisdiction to enquire whether those functions are being performed as the Constitution mandates.”

Justice Brassington Reynolds

As she would later point out, throughout her Claims and Affidavit, Moore referenced to the agreement made by President David Granger and Leader of the Opposition Bharrat Jagdeo for a recount to be facilitated under the supervision of the Caribbean Community (CARICOM). That agreement, Justice Gregory submitted, could be delinked from Moore’s other claims. She further noted that Moore’s assertion on the agreement was supported by Mark France in his Affidavit in Defence. According to her, those assertions must have triggered the supervisory jurisdiction of the High Court.

“To my mind, such assertions must have triggered the supervisory jurisdiction of the High Court to see whether those functions and powers under Article 62 and 162 were being compromised or being reduced by the terms of that agreement. So my view is that it could be delinked from the rest of the claims, and enquired into by the High Court, because there are facts on which the Court could have enquired,” Justice Gregory reasoned.
Article 62 states: “Elections shall be independently supervised by the Election Commission in accordance with the provisions of Article 162.”

More importantly, however, Justice Gregory noted that the jurisdiction of the High Court to hear Moore’s application is a “narrow” one. On that basis, the Appellate Judge reasoned that had Justice Franklin Holder been allowed to exercise jurisdiction, it would have been to address solely the nature of the arrangement under the agreement among the political leaders, CARICOM and the Elections Commission. However, the Appellate Judge noted that she would not send the matter back to the High Court though there is a “narrow” jurisdiction for the application to be heard.

Justice Reynolds, in his deliberations, said while part of Moore’s application could only be addressed via an Elections Petition, the section that treats with the agreement between the political leaders is one for which there could be juridical review to determine whether GECOM would have acted outside of its constitutional remit. However, Justice Persaud upheld the ruling of the Full Court, stating that the issues raised by Moore are matters to be addressed through an Elections Petition.
Today, the Court of Appeal will deliver the Consequential Orders in the case.