…CCJ President commits to fair ruling
…makes it clear that it has not yet established jurisdiction in the case brought by Jagdeo, Ali
….oral submissions on jurisdiction, appeal, set for July 1

By Svetlana Marshall
PRESIDENT of the Caribbean Court of Justice (CCJ), Justice Adrian Saunders, has assured that the regional Court’s decision, in the case challenging the ruling of the Court of Appeal that an election of a President should be based on “valid votes”, will be in keeping with the laws of Guyana and the submissions of the attorneys, and not the utterances of external forces.

During a virtual Case Management Conference (CMC), on Thursday, for the case filed by People’s Progressive Party/Civic (PPP/C) General Secretary, Bharrat Jagdeo and its Presidential Candidate Irfaan Ali, against North Sophia voter, Eslyn David, and the Chief Elections Officer, Keith Lowenfield and others, Trinidad’s Senior Counsel, John Jeremie expressed concerns that statements issued by leaders of the Region could influence the case. Jeremie, who is part of a battery of lawyers representing David, said: “Statements are being made by persons outside of this court with considerable influence in the region which impact on the decision of the Court of Appeal and which have the potential to impact on the decision of the Court.” Dubbing the statements expressed by the Region’s Leaders as “unfortunate,” Jeremie reminded that the case is of utmost importance to the people of Guyana.

In recent times, Chairman of CARICOM and Prime Minister of Barbados, Mia Mottley, and incoming Chair of CARICOM, Dr Ralph Gonsalves, Prime Minister of St Vincent and the Grenadines, have come in for heavy criticisms owing to statements they made which can prejudice the case. Mottley, as recent as Wednesday, delivered stinging criticisms against the Chief Elections Officer, Keith Lownefield and sought to direct that GECOM use invalid votes to declare the March 2, 2020 elections.

In response, Justice Saunders offered his assurance. “You can rest assured that the bench is going to treat with this matter only on the basis of the material that you and your colleagues, those with you, those against you, those who are in this court today, on the basis of what you submit and that is what is always done, certainly by this court. So you can rest assured that we are not going to have regard to anything which is being said outside of the court, and which does not feature as a relevant part of these proceedings,” the CCJ President assured.

The CCJ President took the bench alongside Justice Jacob Wit, Justice Winston Anderson and Justice Denys Barrow. In the case before the Court, the PPP/C, through its General Secretary and Presidential Candidate, is seeking to overturn the decision of the Court of Appeal that the election of a President ought to be done using “valid votes” in accordance with Article 177 (2)(b) of the Constitution and Order No. 60.

The respondents in the case are: Eslyn David; the Chief Elections Officer, Keith Lowenfield; the Chairman of GECOM, Justice (Ret’d) Claudette Singh; GECOM; the Attorney General, Basil Williams; A New and United Guyana (ANUG) Executive, Dr Mark France; The New Movement (TNM) Representative, Daniel Josh Kanhai; Liberty and Justice Party (LJP) Leader, Lenox Shuman; Citizenship Initiative Representative, Shazaam Ally and Change Guyana Executive, Abedin Kindy Ali.

With no objections from the attorneys representing the appellants and the respondents, the A Partnership for National Unity + Alliance for Change (APNU+AFC) was added as a respondent, as well as a representative of the United Republican Party (URP).

JURISDICTION
Though the Court, in the interest of time, would be accepting written and oral submissions from the attorneys representing the appellants and the respondents, the Judges made it clear that the CCJ has not indicated to date that it has jurisdiction to offer the orders being sought. “I would like to express the very firm conviction that all counsel may convey to all persons who may listen to them that this court has not decided that it has jurisdiction,” Justice Barrow said.

Both the Attorney General, Basil Williams SC, and Legal Counsel Jeremie have indicated that the CCJ has no jurisdiction to hear an appeal to the Court of Appeal’s decision made under Article 177 of the Constitution of Guyana. In fact, the Attorney General, through a Legal Officer, Ocelisa Marks, filed an Affidavit in Objection, on the sole basis that the CCJ has no jurisdiction to adjudicate on the case.

In support of this position, it was pointed out in the Affidavit 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,” a section of the affidavit read.

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.’”

Jurisdiction first
Williams and Jeremie had asked that the preliminary issue of jurisdiction be decided upon first but Justice Saunders said that the preliminary issue of jurisdiction will be dealt with simultaneously as the court hears submissions on the PPP/C’s application for special leave, and the substantive matter. The issues before the court, he noted, are being consolidated.
“We will hear preliminary points at the same time as we hear the points of substance. Now you are all lawyers, you are all experienced lawyers, and there is nothing to preclude us from hearing all of these matters and then if the preliminary points succeed then we wouldn’t have to delve into the other matters. But if the preliminary points fail, then we would have saved time by already having before us, all of the submissions on those matters that go beyond the preliminary point that may or may not fail,” Justice Saunders told the attorneys in the case.

However, he iterated that the decision of the court to accept written and oral submissions is not an indication that the Court has accepted jurisdiction. “So that the fact that we have had this case management conference and making orders to receive submissions is not to be taken as if we have already decided on the issue of jurisdiction,” he stated.

ISSUES TO BE ADDRESSED
Justice Saunders indicated that the principal issues before the CCJ: are whether Guyana’s Court of Appeal had the jurisdiction to entertain the case – Eslyn David vs CEO and others; and if the Court lacked jurisdiction, what is the consequence in relation to the proposed appeal to the CCJ. Further to that, the CCJ will also have to decide on if the Court of Appeal had rightly decided jurisdiction, what is the consequence of that in relation to the proposed appeal to the CCJ. It will also be asking whether the Court of Appeal rightly assumed jurisdiction and exceeded that jurisdiction, and what is the consequence of that in relation to the proposed appeal to the CCJ.

The appellants in the matter have no later than 9:00hrs on Saturday to make their written submissions, while the respondents in the case have, until 16:00hrs, on Sunday, to respond. Attorneys representing the appellants will then have up until 9:00hrs on Tuesday (June 30) to reply.