By Svetlana Marshall
THE Attorney General and Minister of Legal Affairs, Basil Williams, remains resolute in his position that the Caribbean Court of Justice (CCJ) has no jurisdiction to hear an appeal to the Court of Appeal’s decision on the interpretation of Article 177 (2) (b) of the Constitution, and on that basis is objecting to any decision that grants special leave to the People’s Progressive Party/Civic.
The PPP/C, through its General Secretary, Bharrat Jagdeo and Presidential Candidate, Irfaan Ali, earlier this week, moved to the CCJ to challenge the Court of Appeal’s decision that the words “more votes are cast” in Article 177 (2) (b) are interpreted to mean “more valid votes are cast.”
But Ocelisa Marks, a Legal Officer attached to the Office of the State Solicitor, in an Affidavit filed on behalf of the Attorney General, said the CCJ must first determine whether it has jurisdiction.
“…it is the first duty of this Court to satisfy itself on its jurisdiction and, if the Court is of the opinion that it does not possess jurisdiction, it is the duty of the court, whether the question of jurisdiction is the subject of a formal appeal or not, of its own motion to pronounce accordingly,” the Legal Officer submitted.
Marks submitted that it is the contention of the Attorney General that the CCJ lacks jurisdiction. In support of this position, the Legal Officer pointed out that Article 177 (4) of the Constitution indicates that any decision made by the Court of Appeal thereunder shall be final. “This article empowers the Court of Appeal to adjudicate matters of the type described in Article 177 to the exclusion of all other courts including the Caribbean Court of Justice, which is the final appellate court of Guyana,” Marks submitted in her Affidavit.
Further to that, it was submitted that while the Caribbean Court of Appeal Act Cap 3:07 was enacted pursuant to Article 123 of the Constitution, it is limited in some regards. “Despite the jurisdiction conferred on the Caribbean Court of Justice under Part II of the Caribbean Court of Justice Act, Section 4 (3) of the Caribbean Court of Act, Cap 3:07 expressly limits the appellate jurisdiction of this Court. Section 4 (3) states that ‘Nothing in this Act shall confer jurisdiction on the Court to hear matters in relation to any decision of the Court of Appeal which, at the time of entry into force of this Act, was declared to be final by any law.’”
The explanatory memorandum of the Caribbean Court of Justice Bill No 15 of 2004, Marks said, was pellucid in its explanation that the CCJ would have no jurisdiction in relation to any decision of the Court of Appeal, which at the time of commencement of the Act, was declared to be final by any law.
“It is clear from the explanatory memorandum of Bill No. 15 of 2004, that clause 4 provides the CCJ with both an original and appellate jurisdiction. However, it is the clear intention of section 4 (3) to restrict the jurisdiction of the Caribbean Court of Justice. Section 4 (3) preserves the jurisdiction of the Court of Appeal and has an overriding effect over any other provision in the Act,” the Legal Officer submitted.
She added: “The Parliament of Guyana would have considered Article 177 (4) of the Constitution which gives an exclusive jurisdiction to the Court of Appeal. Both the Act and the Bill state that the Caribbean Court of Justice Act shall have no appellate jurisdiction in relation to decisions which at the time of the Act was declared to be final by law. One such law is Article 177 of the Constitution which was already in existence at the time of the Caribbean Court of Justice Act was enacted by the Parliament of Guyana in 2004. In fact, this Article has been in the 1980 Constitution from its inception and continues to be a part of the laws of Guyana.”
Marks submitted that the application of Section 4 (3) of the Caribbean Court of Justice Act would result in the Caribbean Court of Justice having no jurisdiction to hear the case brought by PPP/C Officials.
On Tuesday, the CCJ blocked the Guyana Elections Commission (GECOM) from declaring the results of Guyana’s 2020 General and Regional Elections pending its decision in the case brought by Jagdeo and Ali.
The CCJ ordered that: “The Guyana Elections Commission and its officers and agents take no step to prejudice the fair hearing of this Application, including, but not limited to, issuing a declaration of the results of the elections held on 2nd March 2020, until this Court issues final orders following the hearing and determination of the questions raised before this Honourable Court in the said Application”
In issuing that and other orders, the CCJ relied on Section 8 of the Caribbean Court of Justice Act, Cap 3:07 of the Laws of Guyana but Marks, in her submission to the CCJ on behalf of the Attorney General, said Sections 6 and 8 are subject to Section 4 (3) which is the substantive provision under the rubric “Jurisdiction of the Court.”
“….section 26 of the Caribbean Court of Justice Act cannot be relied on to confer jurisdiction of the Caribbean Court of Justice in these circumstances. This section requires all laws, including the Constitution, in force in Guyana or otherwise having effect as part of the laws of Guyana immediately before the commencement of this Act, to be interpreted in a manner consistent with the provisions of this Act. These provisions include section 4 which defines the parameters of the Court’s jurisdiction,” Marks explained.
It was further submitted that the lack of jurisdiction is also supported by Article XXV of the Agreement which established the Caribbean Court of Justice. The Legal Officer pointed out that paragraph 5 of the Article limits the jurisdiction of the CCJ in a manner similar to section 4 (3) of the Caribbean Court of Justice Act. That paragraph states: “Nothing in this Article shall apply to matters in relation to which the decision of the Court of Appeal of a Contracting Party is, at the time of the entry into force of the Agreement pursuant to the Constitution or any other law of that Party, declared to be final.”
Today, when the CCJ sits to conduct a Case Management Conference, it is likely that the issue of jurisdiction will be raised.
