TODAY, the Full Court will determine whether or not Justice Franklin Holder erred when he ruled that the Court has jurisdiction to hear the case brought by Ulita Moore challenging the Guyana Elections Commission’s (GECOM’s) decision to facilitate a national recount of all the votes cast at the March 2 General and Regional Elections.

The decision will be handed down at 11:00hrs.

The Full Court, which comprised Chief Justice Roxane George-Wiltshire and Justice Nareshwar Harnanan, sat on Monday to hear an appeal brought by Leader of the People’s Progressive Party/Civic (PPP/C) List of Candidates, Bharrat Jagdeo against Justice Holder’s decision on jurisdiction.

Last Friday (March 27), Justice Holder ruled that the High Court has jurisdiction to review the actions of 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.

However, Jagdeo immediately, after the ruling, filed an appeal to the Full Court on the grounds that Justice Holder fell into error when he ruled that the Court had jurisdiction to hear the Fixed Date Application (FDA) brought by Moore. According to Jagdeo’s lead attorney, Senior Counsel Douglas Mendes, Moore’s application should have been brought by way of an Elections Petition. In addition to the appeal, Jagdeo filed an application to stay the proceedings in Moore’s case. That Stay was granted by the Full Court on Monday pending the hearing and determination of the appeal.

“We would grant a stay of the hearing of the FDA until the hearing and determination of this appeal,” Chief Justice George-Wiltshire said.

As a result of the stay being granted, the hearing of Moore’s FDA was suspended pending the ruling of the Full Court. The substantive matter was scheduled for 13:00hrs on Monday, March 30, before Justice Holder.

ORAL SUBMISSIONS

Meanwhile, during oral submissions on the issue of jurisdiction before the Full Court, Mendes, who appeared via Skype, maintained that Section 140(1) of the Representation of the People Act ousters the jurisdiction of the Court to hear Moore’s FDA. The application, he argued, ought to have been brought by way of an Elections Petition pursuant to Article 163 of the Constitution of Guyana.

Further, in support of his argument, the Trinidadian Senior Counsel turned the Court’s attention to Article 162 of the Constitution and Section 22 of the Elections Laws (Amendment) Act. Article 162 empowers the Elections Commission to issue instructions and take necessary actions to ensure “impartiality, fairness and compliance with the provisions of the Constitution or any Act of Parliament” while Section 22 of the Elections Laws (Amendment) Act empowers it to remove any difficulty that may arise in the execution of its mandate. Mendes told the Court that it is clear from the evidence tendered that the Elections Commission had taken a position and was in the process of issuing an order to facilitate a recount of the ballots when an injunction was granted by the High Court to temporarily block the recount pending the hearing and determination of the case brought by Moore. The Trinidadian Senior Counsel appeared in association with Attorney-at-Law Anil Nandlall, who was also present in the court.

Meanwhile, Grenadian Queen Counsel, Dr. Francis Alexis – who appeared via Skype on behalf of Moore – told the Full Court that not all election-related issues fit into Article 162 of the Constitution, which primarily addresses registration of elections and the administrative conduct of all elections of members of the National Assembly.

Citing the recent case of Reeaz Holladar v the Returning Officer Clairmont Mingo and others, the Grenadian Queen Counsel said the Court, outside of an Elections Petition, established jurisdiction to adjudicate over the matter as a result of non-compliance with Section 84 (1) of the Representation of the People Act. As such, he maintained that there are issues that may arise during an election that would not be fit for an Elections Petition.

Dr. Alexis submitted to the Court that Moore, in her application, brought attention to the “refusal” of the Chair of GECOM, Justice (Ret’d) Claudette Singh and her Commission to make the necessary declarations pursuant to Article 177 of the Constitution. According to that article, the Presidential Candidate, whose list secured the most votes, shall be deemed to be elected as President and shall so be declared by the Chairman of the Elections Commission, acting only in accordance with the advice of the Chief Elections Officer. The Chief Elections Officer, Keith Lowenfield, in his Affidavit in Defence in the substantive case brought by Moore, had informed the High Court that on March 14, he prepared his report with the elections results for the benefit of the Elections Commission, pursuant to Section 96 of the Representation of the People Act, and submitted same to the Chair but was subsequently instructed to facilitate a national recount. Dr. Alexis iterated that based on the evidence, the Elections Commission failed to execute it functions, and such an issue is not for an Elections Petition.

“That [issue] is not for an Elections Petition but for the High Court to determine. No Elections Petition can address that,” Dr. Alexis stressed while adding that “Section 140 (1) [of the Representation of the People Act] is of no relevance whatsoever to Ms. Moore [case].”

The Grenadian Queen Counsel appeared in association with Attorneys-at-Law, John Jeremie S.C., Keith Scotland out of Trinidad and Tobago, and Guyanese lawyers, Mayo Robertson and Senior Counsel Roysdale Forde.

The Chairman of GECOM 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 respondent in the matter.
The Full Court, upon hearing the submissions, announced that it would hand down its decision in the appeal today at 11:00hrs.