– PPP/C lead counsel Mendes now agrees CCJ cannot hear appeal under Article 177(4)

By Svetlana Marshall

THE People’s Progressive Party/Civic (PPP/C), through its lawyers, has conceded that the Caribbean Court of Justice (ICJ) cannot hear an appeal to the Court of Appeal’s decision made under Article 177 (4).

It was under Article 177 (4) that the Court of Appeal interpreted the words “more votes are cast” in Article 177 (2) (b) to mean “more valid votes are cast,” thereby reminding the Guyana Elections Commission (GECOM) of its responsibility to ensure that the election of a President is done on the basis of valid votes. Notwithstanding the fact that Article 177 (4) states that any decision made by the Court of Appeal, thereunder, is final, the PPP/C, through its General Secretary, Bharrat Jagdeo, and Presidential Candidate, Irfaan Ali, moved to the CCJ, seeking special leave to appeal the Court of Appeal’s decision.

On Tuesday, Ali and Jagdeo’s lawyers, led by Trinidad and Tobago’s Senior Counsel Douglas Mendes, agreed with North Sophia voter, Eslyn David; the Attorney General, Basil Williams; and A Partnership for National Unity + Alliance For Change (APNU+AFC) Representative, Joseph Harmon – respondents in the case – that any decision made by the Court of Appeal under Article 177 (4) of the Constitution cannot be appealed.

“The Intended Appellants agree with all three Respondents that by virtue of Section 4(3) of the CCJ Act, this Honourable Court was not vested with jurisdiction to hear any matter in relation to any decision of the Court of Appeal, which, at the time the CCJ Act came into force, was declared to be final. They, therefore, agree that this Honourable Court does not have jurisdiction to hear any matter in relation to a decision made by the Court of Appeal under Article 177(4) of the Constitution,” Mendes submitted to the CCJ on Tuesday in his Submission in Reply.

He said David, Williams and Harmon were correct when they indicated, through their lawyers, that any decision made under Article 177 (4) is final and un-appealable, and as such the CCJ does not have jurisdiction to grant special leave to appeal.

“It is therefore unnecessary to traverse the long list of authorities which the First Respondent’s cites on the lack of jurisdiction of the Privy Council to grant special leave to appeal, in the face of a statutory provision making decisions of the Court of Appeal final in election petitions or otherwise,” Mendes and his team told the CCJ, Guyana’s apex court.
But while admitting that the CCJ does not have jurisdiction to hear an appeal under Article 177 (4), Mendes contended that the Court of Appeal did not make a decision under Article 177 (4), “since, in the circumstances of this case, it had no jurisdiction to act under Article 177 (4).” The Court of Appeal, in handing down its decision on June 22, had first established jurisdiction before proceeding to interpret the Constitution,as sought in the case – Eslyn David v the Chief Elections Officer and others.

CLEAR DISTINCTION
High Court Judge, Justice Brassington Reynolds, who had formed part of the panel of judges at the Court of Appeal, had said that there is clear distinction between the jurisdiction of the Court of Appeal as outlined in Article 177 (4), and the jurisdiction of the High Court under Article 163 with respect to the validity of the elections.
It was explained that while Article 163 and the National Assembly (Validity of Elections) Act could only lead to the invalidation of a person elected to the National Assembly.

AG Williams from the outset had said that the decisions of the Court of Appeal made under Article 177 (4) are final as indicated by the Constitution, which ousts all other courts including the Caribbean Court of Justice. He submitted that while Parliament, under Article 123 of the Constitution, established the CCJ as Guyana’s final Appellate Court with the enactment of the Caribbean Court of Justice Act, the court’s jurisdiction is limited. In support of his argument, the Attorney General pointed to Section 4 (3) of the Caribbean Court of Justice Act, which 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.”

“It is submitted that Section 4 (3) preserves the jurisdiction of the Court of Appeal and has overriding effect over any other provision in the CCJ Act. Through the use of the words ‘Nothing in this Act shall confer jurisdiction on the Court…’ the Parliament of Guyana saved the law which speaks to the exclusive jurisdiction of the Court of Appeal and reaffirmed the Court of Appeal as the only Court to adjudicate on those matters stated in Article 177 (4),” Williams told the Court.

He explained that while the Caribbean Court of Justice Act clothes the CCJ with both an original and appellate jurisdiction, the exclusive jurisdiction of the Court of Appeal is preserved under Section 4 (3) with regards to cases brought under Article 177 (4). From all indication, he said the decisions made by the Court of Appeal under Article 177 (4) of the Constitution are final.

In support of his position, the Attorney General referenced to Thornton’s Legislative Drafting (5TH Edition) and Halsbury’s Laws of England/Statutes and Legislative Process (Volume 96).“Section 4 (3) of the CCJ Act is a saving provision, the intention of which is to narrow the effect and general operation of the CCJ Act in order to preserve the existing jurisdiction conferred on the Court of Appeal under Article 177 (4) of the Constitution from its general operation,” Williams further submitted, noting that the intention of Parliament is unambiguous.

He noted that while Sections 6 and 8 of the Caribbean Court of Justice Act, deal with matters of procedures with respect to the appeals to the Court, those sections are subject to Section 4 (3) which is the substantive provision under the rubric of the “Jurisdiction of the Court.”

Validity of elections

David’s battery of lawyers, led by Trinidad and Tobago’s Senior Counsel, John Jeremie; and the Attorney-General had both submitted that the President does not form part of the National Assembly, and as such, the validity of the election of any person to the Office of the President cannot be determined under Article 163, as such could only be done under Article 177(4).

The attorneys also rejected Mendes’ contention that Article 177 (4) could only be invoked following the declaration of the result of the election. Such a move, they warned, could lead to an absurd result with unintended consequences, Jeremie told the CCJ in his submissions.
Further to that, it was submitted that the ouster clause in Article 177 (6), which is triggered after the election, clearly demonstrates why Article 177 (4) provides for questions as to validity of an election to be raised before the Chairman of GECOM declares the election of a President. “A Constitution is not interpreted to have its provisions collide with each other, especially when that would make a mockery of both Article 177 (4) and Article 177 (6),” Jeremie and team submitted.

They added: “Article 177 (4) does not require a completed election of a President in order for the Court of Appeal’s jurisdiction to be invoked to interpret the Constitution, particularly in relation to matters concerning the election of a President. There is simply no qualification placed on the jurisdiction of the Court of Appeal, other than that it must concern issues related to the election of a President. The Court of Appeal may interpret the Constitution at any time, upon an application by anyone in this regard. The Court of Appeal has done so here.”

On that as the basis of their arguments, the batteries of lawyers said it is clear that there can be no appeal to the CCJ with regards to matters determined under Article 177 (4) of the Constitution, and lobbied the CCJ to refuse the application for special leave filed by Ali and Jagdeo.

Today, the CCJ will hear arguments on the issue of jurisdiction, the application for special leave, and the substantive matter. It will decide on the issue of jurisdiction first, before proceeding to pronounce on anything else.