Dear Editor,
THE sharply divided opinions between the chief law officers (Basil Williams, S.C the incumbent; Anil Nandlall the predecessor) has again stirred my lawyer’s interest in the Gecom National Recount imbroglio; and inspired this retreat from my self-imposed prohibition on further letter writing on this matter. To be clear, I hold no brief for the incumbent Attorney General- Basil Williams, SC. I am being Devil’s advocate.

The learned AG contends that under and by virtue of its gazetted Order, Gecom has vested in itself, the jurisdiction “to resolve the irregularities, discrepancies and anomalies contained in the Observation Reports” (see “Gecom has power to resolve irregularities emanating from the recount process” GC, Tuesday, May 26, 2020) Anil Nandlall (elsewhere) argues that Gecom’s jurisdiction is limited to a numerical (re)count, and it has no such jurisdiction to resolve irregularities etc.; those matters are for an elections petition.

I apprehend that the real issue condescends into this: what matters are within the constitutional competence of Gecom (an arm of the Executive branch) by its order to deliberate on; and in contradistinction, what matters are for adjudication in, and determination (exclusively) by a court of law (in what is known as an election petition process)? The question so apprehended, recognizes that both Gecom, and the High Court, are creatures of the Constitution, deriving jurisdiction therefrom, (albeit, of course, not exclusively in this matter). I answer this question (which, as I will show, is not entirely free from difficulty) by stating some propositions.

As Devil’s advocate, my first proposition is that it is a legal impossibility for Gecom qua CONFEREE of the power vested or conferred by the Order, to act ultra vires an Order made by Gecom qua CONFEROR itself, for Gecom. The very jurisprudential notion of ultra vires (ie. Outside or beyond the powers) and the incidence of the superior Courts assumption of Jurisdiction to supervise/review (on behalf of the conferor of a power) the exercise of a power to see that the conferee of the power keeps within the boundaries of the four corners of the power given by the Conferor, necessarily imports two separate and distinct actors (dramatis personae). I am unable to comprehend how justiciably (fanciful suppositions apart from the realities of the matter) Gecom can act ultra vires its own, self made Order. This is a proposition I admit, of abstract legalistic nicety, so I turn to my other propositions.

My second proposition is that both the incumbent AG (Basil Williams, SC) and the predecessor (Anil Nandlall) would agree that Gecom by its Order, cannot arrogate unto itself (by a side wind) some jurisdiction (whether acting, or purporting to act, pursuant to article 162 of the Constitution, or/and section 22 of Elections Laws (Amendment) Act 15/2000) that is dual, concurrent, coextensive with that of the High Court in and for the purposes of an Election petition (EP) as provided stringently for, in section 3 of the National Assembly (Validity of Elections) Act Cap 1:04. Clearly, as a matter of legislative history, the constitution framers in drafting article 162 (1) (b) must be taken to have been aware of the National Assembly (Validity of Elections) Act, Cap 1:04 (an existing law) and accordingly not to have intended any duality of, or competing jurisdictions, between Gecom, and the High Court.

My third proposition is that an EP is in the electoral scheme of things, not an indispensability; it is not part of an election process, it CANNOT PRECEDE or preempt an ascertain-ment/ verification and declaration of the GRE (General and Regional Elections) results (which are indispensibilities) by Gecom/CEO; and to that practical intent and purposes, it is, must be, AND CAN ONLY BE, for Gecom to determine, and decide for itself (in the patent absence of constitutional/legislative specificities), what are the true factual limits of its jurisdiction (which is suigeneris) vested by the Order. Of course, obedience by Gecom to the Order is just as obligatory as would be obedience to an Act of Parliament (eg. Act 15/2000). But it is one thing to seek or be concerned to enforce compliance with the Order (that is legitimate); it is quite another thing to seek to prevent the implementation and compliance with the Order (that is illegitimate). If GECOM (in consonance with its own Order tends towards engagement to resolve irregularities etc. emanating from the recount process, then cadit quaestio (ie. So be it).

Sometimes, as lawyers, we ignore, to our embarrassment, that as Lord Reid has said “It must be borne in mind that an Order made under statutory power is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires” [F Hoffman-La Roche & Co, AG and others v. Secretary of State for Trade and Industry (1974) 2 all ER 1128, 1134 (HL)] (emphasis mine) The “Order” of which Lord Reid writes, is juridically (being subsidiary legislation) of the same type of Gecom’s Order under which Gecom has been urged/invited (and has permitted itself to) act to resolve the (exposed) irregularities etc, (the Chair, is not Gecom). En passant, I observe that the chair’s seemingly controversial statement about he who asserts must prove, is eminently supported by passages in the judgement of Lord Morris at Borthy-Y-Guest in the analogous F Hoffman La Roche case (see at page 1143).

My final proposition is that Nandlall cannot be permitted to blow hot and blow cold. He (Ramkarran, SC, Christopher Ram- on this legally intricate matter, I only acknowledge lawyers, not laymen like Kit Nascimento, Frederick Kissoon) cannot APPROBATE and REPROPATE. He (they) cannot be permitted to approbate and argue with political convenience and opportunism, that article 162 and section 22 of 15/2000 empowers Gecom (by Order), to effectively disregard and disapply section 88 of the Representation of the People Act, Cap 1:03 (recount) (which validates and legitimizes Region 4 RO Mingo’s declaration in decisive favour of the APNU+AFC), and to put into abeyance and make Mingo’s declaration a matter questionable not by an EP, (on their arguments); but a matter for Gecom’s deliberation and determination (by a National Recount process), and at one and the same time, reprobate and argue that Gecom, (must by a somewhat Orwelliam illogicality, and procrustean interpretation of its Order), disapply and disregard its own Order, when applying it (for resolving irregularities, anomalies etc), works to their political inconvenience and prejudice, and in favour of APNU+AFC. Gecom, cannot be unevenhanded in its pursuit of “impartiality and fairness” [article 162(1) (b)]. En passant, too, I observe that in any event, it seems that Gecom was careful enough by the drafting technique of, also, generalities of wording, to have avoided any austerity of tabulated legalism, which seems to be the approach to interpretation of the Order which, conveniently, and misconceivedly, commends itself to Nandlall. It is in the public interest that resistance to the Order and disapplication of it should be suppressed.

In the beginning of this imbroglio, I have argued in my previous letters that the National Recount is unlawful as being in excess of constitutional jurisdiction. That is still, upon further reflection, my considered opinion. But Gecom’s Order which facilitates the National Recount at the ACCC is “the law of the land …” (to quote Lord Reid). The matters of mixed fact and law (eg. Voter fraud, unstamped ballots, fraudulent SOPs) as matters within the regulatory deliberation jurisdiction (Gecom) on the one hand, and matters for judicial adjudication (by EP in the high Court) on the other hand, seems to me to be impossible of any forensic certainty– where Gecom’s jurisdiction of facts ends, and EP begins. But what admits of no uncertainty is an absence of specificity in the Constitution as to what questions of facts are for Gecom, and EP as the case maybe.

I end with this: Gecom, for the time being while its Order is in force, (and not declared to be ultra vires) is Judge, Jury and Executioner as to questions of facts/mixed law and facts for the purposes of verification/declaration. Having enjoyed the benefit of the Order (otherwise Mr. David A. Granger ought to already have been verified as the winner, declared as the winner and sworn in as President) , the PPP/C must endure its burdens (as they conceive the resolution of anomalies and irregularities to be). If this view be right, and since you cannot have an EP unless and until, as a condition precedent, there has been a declaration of the results by the Gecom Chair, I concur (also for the reasons he has articulated) with the Learned Attorney General’s contention that Nandlall’s arguments “must be rejected”.
Regards,
Maxwell E. Edwards