Where even the Court of Appeal has no jurisdiction, and cannot tread, who in GECOM can?
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Dear Editor

I refer to a front page banner spread (with inset) in Saturday June 27 edition of the Guyana Chronicle under Caption: “CEO STANDS BY REPORT ON VALID VOTES”. His critics (notably Ramkarran, SC) are not only manifestly wrong in law, but specious in their blinkered, persistently incredulous criticism of the CEO. And, even as I hold no brief for Keith Lowenfield, it is my purpose here, to, in his infallible defence, yet again, show why the critics are wrong, vexatious and specious. It is specious, because of the critics’ seeming ignorance of a most basic and fundamental principle of constitutional law: the Constitution is an organic instrument; and must be construed as a whole. Wrong, for this reason too: the general provision of article 162 MUST be read as yielding to the specificity of the constitutional prescriptions in relation to the CEO under article 172(2) (b) on matters of declaration of the results of any GRE (in this regard there is nothing special or peculiar about the 2020 GREs). And vexatious, because the criticisms are not made with any genuine, good faith intentions.

Editor, the principle or rule of constitutional construction that the Constitution, having a multiplicity of provisions (ours is of some 232 articles) in respect of any one particular subject matter (eg inter alia, general elections, GECOM, service commissions, Executive powers of President) must be construed holistically (i.e looking at the relevant, interrelated provisions as a whole, or, as one, and making sense of them) is one that is not only commonsensical and obvious, but well settled in our constitutional jurisprudence. (I, yet again refer the learned reader to the Privy Council decision in Meerabux V. AG (2005) 66 WIR 113). Yet a cricketing parlance might suffice to simplify this legalistic stuff. A cricketer’s hand, feet and eyes are all separate, but they are parts of one human body (so in constitutional parlance this one whole body is the Constitution). So, take the case of Sir Viv Richards as a batsman intending to hit a four or six (so in constitutional parlance Viv Richards hitting that four or six is a particular subject matter under consideration). The result of a six or four, requires coordination between the batsman’s hands, feet and eyes (Sir Viv’s hands, feet, eyes would in constitutional parlance be the various provisions touching and concerning that particle subject matter under consideration). Sir Viv using any one of those three, or any two combination, would not give him the result of a six or four.

And so like Viv Richards’ hand, feet, eyes coordinated resultant four or six, it is just such coordinated, holistic, wholesome interpretation of articles 162 and 177 (2)(b) that gives the results in law as intended by the framers, that the CEO not be answerable to, nor subject to the directions of GECOM, or the Chair on the subject matter of the ascertainment/verification of votes in the compilation of his advice for the purpose of the declaration by the chair under article 177(2)(b). And it is no accident that article 162(1) which provides as to the functions of GECOM has the words’ “subject to the provisions of the Constitution”; and article 177(2) (b) has no such words of limitation.

But for the likes of Ramkarran, S.C article 177(2)(b) must be read as if it makes no mention of the CEO!
Editor, at the risk of pedantry, I again refer your readers to the specific, plain, and unambiguous words in the Constitution itself as regards the dichotomy of functions/powers between the Chair, CEO, and GECOM viz “… 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” (article 177(2)(b)).

I ask rhetorically: What can be plainer than that? Where is any ambiguity? It is a manifest incongruity and absurdity (bordering on rubbish) to suppose, or take a view, that in limiting and restricting the chair to act only on the CEO advice the framers/drafters of the Constitution were in the self same provision, intending (as if by some volte face) no such restriction, but were instead intending that the Chair/GECOM was to direct/instruct the CEO as to what HIS advice was to be, and then, for the Chair to act only on that!! Again I say, the law cannot be so asinine as that! (I have written on this aspect of our 2020 GRE before; my last is “Neither the Chair, nor GECOM can direct the CEO” – GC, Wednesday, June 24, 2020).

Putting it colloquially: the chair/GECOM must rubber stamp the CEOs advice. One more point of significance: by article 226(5)(ii) the framers of the Constitution not only plainly subordinated the commission’s consideration of the CEOs advice to the advice, but made his advice still “VALID IN LAW AND BINDING” if some of the commissioners tactfully (albeit misguidedly) absented themselves.

Turning briefly to the principle that the general provisions of article 162 cannot derogate from, or be used to subvert, impair, dilute, undermine or water down the specific provision/prescriptions in article 177(2)(b). Again, at the risk of being pedantic, I would only state that this common sense rule finds expression in the Latin phrase: ‘generalia specialibus non derogant’ (ie the general cannot derogate from the specific). And, on the high judicial authority of Lord Diplock in the Privy Council, it is a rule applicable in the interpretation of the Constitution, ours, like Trinidad and Tobago’s, being on the Westminister model (see Thomas V. Attorney General (1981) 32 WIR 375 at page 394.
Editor, I repeat, ad nauseaum, these points – (i) Elections petition cannot, in terms of our Constitution, be used to challenge the Chair’s declaration of the President based on the CEOs, advice.

So, it is either that those who huff and puff about EP are ignorant of our Constitution, or being cognisant of the Constitution/statute law on the subject matter of EP, they seek by their tangled web of deceit, to entrap the CEO into abdicating his constitutional duty to ascertain valid votes only; (ii) EP or no EP, the results can only be based, under our Constitution, on, as the law, now authoritatively clarified by the court of Appeal, is: valid votes, (iii) It is not the business of the CEO to appease any party, or observer(s) or any other extra(non) constitutional actors; the CEOs solemn, sacred duty is compliance with, and obedience to the Constitution as interpreted by the CoA.

I am bemused, and it would be laughable if it were not a matter of such grave importance. By a somewhat Orwellian illogicality, while the opposition (and their blinkered extra (non) constitutional actors) did not see it fit to accept the consequences of Region Four RO’s (Clairmont Migo) declaration which gave the APNU+AFC the victory, and demand the PPP/C resort to EP, they now demand that the APNU+AFC must accept the demonstrably fraudulently tainted vote-count which denies it the victory Mingo’s declaration rightly gave it, and resort to EP. They make George Orwell’s pigs in Animal Farm look like boy scouts!
One final comment about the observers/recount. Having straight-jacketed themselves by their impatient, premature conclusions about the credibility of the 2020 GREs, these extra – constitutional actors, inspite of the mountain of PPP/C-inspired fraud unearthed and exposed by the recount process, would rather persist in their delusions of credibility, rather than do the right and honourable, and decent thing, a volte face and say: “I was wrong; I could not have known of these abominations by reasons only of what I observed on the surface on election day”.

And so, it is considerations like these which makes Ramkarran’s use of the detached comments of persons like Mia Motley, Mary Robinson, Marco Rubio (!) – with him clearly a case of he who pays the piper calls the tune – as evidence in support of the persistent incredulity of his criticisms of Keith Lowenfield, not only farcical, feeble and pathetic, but inadmissible, to any informed, fair-minded person. (“Keith Lowenfield – A Runaway Train” – SN, Sunday June 28, 2020). Learned SC, the CEOs advice/report is based entirely on the evidence of the recount. You cannot pick out the duff and leave the plums; it is the evidence AS A WHOLE that determines the trueness of the verdict; the observation reports are as much part and parcel of that evidence, as the quantitative figures.

I end with this: GREs, like litigation in court, are adversarial and contentious. The judge decides as between the adversaries based only on the law (at any rate his understanding of it). I see an analogy between the CEO and a judge in civil litigation. Just like a judge, the CEO decides both questions of facts and law in his ascertainment of valid votes (where there is no judicial clarity) as regards the Presidential winner. Yes, by article 177(2) (b) itself GECOM has to consider his advice/report. But the Constitution which created GECOM has not constituted it a court of law to correct the CEO. The words “for its acceptance or rejection” would have been drafted in after “meeting” in article 177 (2) (b) if that was the intention of the framers; but there are no such words of rejection in the constitutional text. And, even the Court of Appeal has been vested with very limited and circumscribed powers to do so (I am not here concerned with elections petition in the High Court limited to seat allocation matters). Where even the Court of Appeal has no jurisdiction, and cannot tread, who in GECOM can?

Maxwell E. Edwards
Attorney – at – Law
(Former Magistrate)

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