…rules it has jurisdiction to hear case

JUSTICE Franklin Holder on Friday ruled that the High Court has jurisdiction to review the actions of the Guyana Elections Commission (GECOM) in light of allegations that it may have acted outside of its constitutional powers when it opted to facilitate a National Recount under the supervision of a high-level team from the Caribbean Community (CARICOM), based on an agreement brokered by two of the country’s political actors.

Last Tuesday, Leader of the People’s Progressive Party/Civic (PPP/C) List of Candidates, Bharrat Jagdeo challenged the jurisdiction of the Court to hear the Fixed Date Application (FDA) filed by a private citizen, Ulita Moore. In that application, Moore asked the High Court to rule that the decision by GECOM, its Chairman and CEO to have CARICOM supervise a National Recount of all the votes cast at the March 2, 2020 General and Regional Elections was in contravention of the Constitution and the Representation of the People Act. But Jagdeo, through his team of lawyers led by Trinidad Senior Counsel Douglas Mendes, argued that the application ought to have been brought by way of an Elections Petition. Further, his lawyers argued that Section 140(1) of the Representation of the People Act ousters the jurisdiction of the Court to hear the FDA, but Justice Holder said such is not the case in this instance.

Section 140 (1) states: “Except, to the extent that jurisdiction in that behalf has been conferred, and the exercise thereof is required by the Constitution or any law made under Article 163 thereof (which provides for the determination by the Supreme Court of Judicature of questions as to membership of the National Assembly and elections thereto), and save, as hereinbefore provided to the contrary, no question whether any function of the Elections Commission or of any of its members has been performed validly or at all, shall be enquired into in any court.”

In handing down his decision in the High Court on Friday, Justice Holder explained that while Section 140 of the Representation of the People Act provides for an alternative statutory remedy, in the form on an Elections Petition, to address issues provided for in Article 163, such alternative is limited.

LIMITED ALTERNATIVE REMEDY
“This is a limited alternative remedy to treat with only those issues provided for in Article 163,” Justice Holder said.

According to Article 163 (1) of the Constitution, the High Court has exclusive jurisdiction to determine any question relative to the qualification of any person to be elected as a member of the National Assembly; and whether an election has been lawfully conducted, or the result thereof has been or may have been affected by any unlawful act or omission.
Justice Holder said the complaints raised in Moore’s FDA are not aligned with those outlined in Article 163 (1). “The allegation is, by acceding to a brokered arrangement by two of the political actors and CARICOM to have a high-level CARICOM team supervise a recount of all 10 Districts, for which declarations had already been made, and for which GECOM sought to be put in effect as evidence by the statement of the Chairperson of GECOM on the 14TH March 2020, (GECOM) was in breach of the Articles 62, 162, 161 (B), 226 (1),” the High Court Judge summarised.

More importantly, Article 161 (B) of the Constitution clearly states: “It is hereby declared that the role of political parties and their nominees in the conduct of elections by the Elections Commission shall be limited to their participation in determining policy, monitoring the electoral process and the conduct of the election, but does not include active management of the electoral process.”

‘CLEARLY ESTABLISHES INDEPENDENCE’
Added to that, Article 226 (1) clearly establishes independence of Commissions in the execution of their functions. That Article states: “Save as otherwise provided in this Constitution in the exercise of its functions under this Constitution, a Commission shall not be subject to the direction or control of any other person or authority.”

Justice Holder said the actions of GECOM, with respect to the agreement, were confirmed by Chief Elections Officer Keith Lowenfield in his Affidavit in Defence, as well as Jagdeo in his Affidavit in Defence. “By the Affidavit of the CEO, GECOM, seemingly appreciating themselves that they may not have had jurisdiction to do such, sought to give themselves jurisdiction by seeking to amend certain provisions of the Representation of the People Act, by an Order pursuant to Section 22 of the Elections Law (Amendment) Act of 2000, which was not given effect,” the High Court Judge noted.

GUARDIAN OF THE CONSTITUTION
He said it is imperative that his Court remains the “guardian” of the Constitution. He stated that the cases primarily relied on by Senior Counsel Mendes did not address the issue of the alleged conduct of a tribunal or functionaries seeking to act outside of their constitutional powers as alleged in the case bought by Moore.

Justice Holder emphasised that the Court can inquire into the action of the Commission, if it is believed that it has or intends to act beyond its power, as defined in the Constitution. He iterated that while the ouster provision, as in the case of Section 140 of the Representation of the People Act, provides for alternative statutory remedy, that alternative remedy relates to questions provided for in Article 163, where GECOM may be acting in the ambit of its jurisdiction.

“…Section 140 (1) of the Representation of the People Act by itself and when construed with Section 22 of the Elections Law (Amendment) Act …does not ousts the jurisdiction of the court, in its ordinary jurisdiction, for Judicial Review where the Elections Commission has alleged to have done or intends to do something that it has no jurisdiction to do,” Justice Holder said.

It was on those grounds that Justice Holder established jurisdiction to hear the case brought by Moore, who is being represented by Grenadian Queen’s Counsel, Dr. Francis Alexis; Attorneys-at-Law John Jeremie, S.C.; Keith Scotland out of Trinidad and Tobago; and Guyanese Lawyers Mayo Robertson and Senior Counsel Roysdale Forde. Robertson and Dr. Alexis, in their submissions, had made similar observations as outlined by the High Court Judge.

The Chairman of GECOM, Justice (Ret’d) Claudette Singh, was represented by Attorney-at-Law Kim Kyte-Thomas, while the Chief Elections Officer was represented by Senior Counsel Neil Boston. 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.

Meanwhile, in response to the Court’s decision, Jagdeo, through his lawyers, asked the Court to stay the proceedings to allow for the filling of an appeal, but the request was denied.

Anil Nandlall, one of the attorneys representing Jagdeo, has since indicated that an appeal has been filed. “An appeal against Justice Franklin Holder’s ruling in the Ulita Moore case that the High Court has jurisdiction to hear and determine those proceedings, along with an Application for a Stay of those proceedings while the Appeal is being heard, has already been filed, and is fixed for hearing at 11:00hrs on Monday, March 30, 2020,” Nandlall said on Friday evening.