Court of Appeal rules it has jurisdiction to interpret Constitution
The Court of Appeal
The Court of Appeal

By Svetlana Marshall
BY a 2-1 margin, the Court of Appeal ruled that it had jurisdiction to interpret the words “more votes are cast” in Article 177 (2) (b) of the Constitution in a case brought against the Guyana Elections Commission (GECOM) and others by a North Sophia voter, Eslyn David, who had challenged the Commission’s failure to determine a final credible count.

In its original constitutional jurisdiction conferred by Article 177(4) of the Constitution, David, last Thursday (June 18), asked the Appellate Court to interpret the words “more votes are cast” in Article 177 (2) (b). On Monday, the ruling was handed down in the Court of Appeal by a panel of three judges with Justice of Appeal Dawn Gregory and High Court Judge, Justice Brassington Reynolds ruling that the Court has jurisdiction to interpret Article 177 (2) (b) as provided for in Article 177 (4). However, Justice of Appeal, Rishi Persaud ruled that the application was premature, misconceived and ought to have been thrown out.

Article 177(4) of the Constitution states: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends upon the qualification of any person for election or the interpretation of the Constitution; and any decision of that Court under this paragraph shall be final.”

In handing down his ruling, Justice Reynolds referenced the case – Eusi Kwayana’s Application (1980) which was relied upon by both the appellant, through her battery of lawyers, and the added respondents – People’s Progressive Party/Civic (PPP/C) General-Secretary Bharrat Jagdeo and PPP/C Presidential Candidate Irfaan Ali and others – though offering different interpretation.

Justice Reynolds said the Court of Appeal, in examining Article 177 (4) at the time, said though its jurisdiction is circumscribed, the Article relates to questions as to the validity of a President in so far as such questions depend “(a) upon the qualification of any person for election or (b) upon the interpretation of the Constitution.”

On this basis, the High Court Judge concluded that the limbs for testing the validity of the election of a President were to be read disjunctively – a position held by the appellant’s Attorney Trinidad Senior Counsel, John Jeremie, and Legal Counsel Mayo Robertson and others, and the Attorney General Basil Williams – the fourth named respondent.

With the exception of the Attorney General, the other respondents in the case – the Chair of GECOM, Justice (Ret’d) Claudette Singh, Jagdeo, Ali and others – through their Lawyers, had argued that the narrow, exclusive jurisdiction created by Article 177 (4) could not have been invoked in the case brought by David.

Justice Reynolds noted that Attorney-at-Law, Timothy Jonas, who presented ANUG’s Representative, Dr. Mark France and others, in association with Senior Counsel Ralph Ramkarran, had argued that the Appellate Court had no jurisdiction to hear the case in the absence of an elected president. But Justice Reynolds disagreed. “This position, the court believes, is not borne out by Article 177 (6) which clearly from its reference to the documents referred therein contemplates equally a situation as in the instant case where the elections process has not been concluded,” the High Court Judge ruled.

Legal Counsel Kim Kyte-Thomas, on behalf of GECOM Chair, had argued that Article 177 (4) of the Constitution clothes the Appellate Court with a “narrow special exclusive” jurisdiction to hear and determine questions relative to the validity of an election of a president with particular reference to qualification and or the interpretation of the Constitution. She had contended that the words “or the interpretation of the Constitution in Article 177 (4)” relate to the interpretation of the constitutional provisions in relation to any person for election to the President and nothing else. In fact, Kyte-Thomas had submitted to the Court that David was seeking an interpretation of Order No. 60, which was gazetted by the Elections Commission on May 4, and not the Constitution and as such the case ought to have been struck out. Kyte-Thomas and Douglas Mendes – the attorney, which presented the PPP/C Officials – had submitted that David’s case ought to have been filed in the High Court by way of an Elections Petition under Article 163 of the Constitution and the National Assembly (Validity of Elections) Act after the declaration of the Election Results. The attorneys had argued that the Article 163 of the Constitution gives the High Court exclusive jurisdiction to determine the validity of an election.

But Justice Reynolds, in arriving at his ruling, said that exclusive jurisdiction of the High Court under Article 163 of the Constitution is separate and distinct from the exclusive jurisdiction granted to the Court of Appeal under Article 177 (4). “The election petition process as provided for under Article163 and the National Assembly (Validity of Elections) Act relates to the election of a person to the National Assembly; it however does not replace the Court of Appeal’s exclusive jurisdiction as it relates to the election of a person to the office of the president. Furthermore, the completion of the electoral process by declaration of the results is not a necessary precondition to invoke the jurisdiction of the Court of Appeal under Article 177 (4),” Justice Reynolds said as he summarized the submissions of the appellant’s attorneys while noting that any person at any stage during the electoral process could approach the Court of Appeal pursuant to Article 177 (4) to seek an interpretation of any provision of the Constitution so far as such an interpretation impacts, touches or concerns an election of a president.

He concluded that the Constitution provides separate jurisdictions for the election of members of the National Assembly and that of the President, though the elections are conducted simultaneously. He reminded that the President does not form part of the National Assembly but rather Parliament.

“I have formed the opinion, respectfully so, that Article 177 (4) establishes a separate exclusive jurisdiction in the Court of Appeal, that is to say, in respect to appeals to hear and determine questions as to the validity of the election of a president, in so far as that question depends on, firstly, the qualification of any person or the interpretation of the constitution. Respectfully, therefore, it is my view that the High Court in Article 163 or the National Assembly (Validity of Elections) Law does not have this jurisdiction,” Justice Reynolds said while making it clear that there is no competing jurisdiction as was suggested by Mendes and others.

Justice Gregory had made similar conclusions. In handing down her ruling she said: “To my mind, the court is well within the jurisdiction, as accorded to it within the confines of Article 177 (4) which creates two limbs for jurisdiction and that jurisdiction turns on the election of a president, whether the court is exercising the jurisdiction in relation to qualification or whether the court is exercising its jurisdiction in relation to interpretation, the jurisdiction turns on election of a President, when one considers the wording of Article 177 (4).”

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