By Maxwell Edwards
Attorney, Maxwell Edwards has rebutted Opposition Leader, Bharrat Jagdeo’s remarks that the Guyana Elections Commission does not have the powers to nullify an elections.
Edwards in a legal opinion proferred to this newspaper examined the order gazetted by GECOM for the recount.

Paragraph “1”

1. As regards paragraph “1”. Article 177 has to be read with article 162, Accordingly, whatever view we take as to the (un)constitutionality of Order 60/2020, it has been made pursuant to article 162, is presumed valid (until and unless it is declared unconstitutional and/or ultra vires by the High Court) and accordingly, Gecom is bound by it – it is the law as to the particulars of the regime or machinery for declaration. Observe, that article 177

(2) (b) in its generality does not make sufficient and complete provision as to the regime of procedures viz the words “and shall be declared by the Chairman of the Elections Commission acting ONLY in accordance with the advice of the Chief Elections Officer AFTER such advice has been tendered to the elections Commission at a duly summoned meeting”.
Plainly, the CEO cannot act on no evidence in the compilation or preparation of his “advice”. Art. 162 (2) (b) is silent as to this. So, the draftsman must have intended the relevant provisions of ROPA, Cap 1:03 to apply as to what matters were to be taken into account; and how, and when the compilation of this advice (“Report”- “section 96,99”) was to happen. The framers of the constitution has left such matters to be provided for by legislation (the analogous case of Thompson v. Forrest (1967) 7 WIR 296 clearly illustrates this proposition). But, Order 60/2020 now applies. It sets out the machinery/regime of procedures as to how the CEOs “advice”/ “report” was to be complied (see clauses 9-14 esp cl 12, 14 of 60/2020). It is clear that by cl 14 itself, section 96 of ROPA still applies. Section 96 provides as to “VALID votes”.

The question of interpretation then arises: what did the draftsman mean by “valid”. The draftsman did not just provide as to votes simpliciter.

Neither the CEO, nor the Chairman, can act ultra vires Order 60/2020 and/or section 96 of ROPA. Plainly, if the Chairman purports to make a declaration “at this stage” (quoting the “opinion”) she would be doing so without substantial compliance with Order 60/2020. Her declaration would be ultra vires and invalid.

Paragraph “2” of the Opinion
2. We take it that the “election process” begins with the Proclamation of Nomination day/ Nomination and ends with the declaration.
Further, we take it that the matters provided for in/by order 60/2020 is part and parcel of the election process.

It is inconceivable that order 60/2020 (which is but subsidiary legislation) can override or abrogate article 177 (article 8).
But, as submitted at para 1, there is no inconsistency between the generality of art. 177

(2) (b), and the particularities under order 60/2000. I emphasize that particulars were left by the framers of the Constitution to be provided for by legislation (both principal and subsidiary).

3. My proposal for litigation as to interpretation of article 162 and 177.
The Constitution, or ROPA, or order 60/2020, does not detine what is “valid votes”. So, it is, and must be, for the CEO (in the compilation of his section 96 report) and Gecom (not the chairman per se) in its supervisory capacity, to satisfy himself/itself as to what, in fact and law, for the purposes of sect 96 of ROPA, amounts to “valid”. It is submitted that if the CEO takes the view that votes/ballots in boxes which authenticity cannot be ascertained by him because of the absence of necessary statutory documentation (eg counter foils, OLEs, ballot books etc) are not valid, he has, by NECESSARY IMPLICATION of both Constitution and Statue law, the right and duty to hold that view. The tension would be between the unavoidable disenfranchisement of some electors; and the overriding constitutional objective of a valid election as one of the hallmarks or cornerstone of a democratic state (article 1.).

So, given the disputations, and contentious nature of the validity of substantial numbers of votes, it would seem most appropriate for the CEO (or any other person with a sufficient interest) to invoke the “exclusive jurisdiction of the Court of Appeal (art 177 (4) to have an authoritative ruling on this issue, touching and concerning the “validity of an election of a President” (art. 177 (4)]. Plainly, and inexorably, inter alia, valid votes, is a function of “validity of an election of a President”.

It is important to stress that case law establishes that “election of a President” is a process ending with declaration by the Chairman. That declaration can only be based on the CEOs report(s). the CEO, on a matter of pure law (which interpretation is) is entitled to seek the guidance of the CoA in his discharge of these most grave constitutional/statutory matters.
I conceive that the question(s) of interpretation in terms of article 177 (4) would be to this effect: (i) whether upon a true interpretation of article 162, article 162 (2) (b) permits Gecom to prescribe as to what amounts to valid votes which prescription is the law the CEO must apply in his compilation of his report in terms of section 96 of ROPA; (ii) whether, and to what extent, upon a true interpretation of article 177, it is permissible for a true declaration to be made under article 177 (2) (b) which declaration disregards and fails to take into account, evidence as found, or known to the CEO, of fraud, and breaches of statutory duties by election officers including, but not limited to, presiding officers, whether, or not, those fraud and/or statutory breaches materially affects the results of the Election; (iii) whether upon a true interpretation of article 177 the chairman can, in law, make a declaration that does not substantially comply with the requirements of paragraph 14 of Order 60/2020; (iv) whether upon a true interpretation of articles 1 and 9 wherein and whereby are entrenched the political notions of democratic State at the deepest level, and so are intended to be of the highest value in our constitutional jurisprudence, the framers ever countenanced that a declaration in terms of article 177 was to be made not withstanding any evidence of electoral fraud and statutory illegalities which seriously touches and impacts the integrity and probity and propriety of the Election; (v) whether upon a true interpretation of articles 1, 9, 162 and 177 intended to achieve fairness and on which the democratic election of the President must be based, it would be a mockery of the so deeply entrenched notion or concept of democracy, and democratic State, were the Chief Election Officer to fail or omit to take into account evidence of grave anti-democratic practices and whether such failures and omission can have the effect of nullifying an election result, as submitted by the CEO to Gecom.

Our arguments are strongly and compellingly analogously supported by one of the leading cases concerned with the constitutional concept or idea of democracy and “democratic state” – State of Mauritius v. Khoyratty (2007), 1 AC 80 (PC) especially at page 96-97 per Lord Rodger of Earlsferry viz “Giving content to the term “democratic State”… is part of the task of judges who are called upon to interpret the Constitution… what matters is the content of the concept of a democratic state as that term is used in section 1” (section 1 corresponds to article 1 of Guyana’s Constitution). The Constitution has to be purposefully interpreted to give content to the phrase “validity of an election”.