…CCJ to hand down, next Wednesday, landmark decision on PPP/C’s elections appeal
…AG tells Court it was widespread electoral fraud that warranted need for the determination of “valid votes”
…maintains court has no jurisdiction to hear appeal to Court of Appeal’s decision

By Svetlana Marshall
NEXT Wednesday, the Caribbean Court of Justice (CCJ) will hand down its decision on whether it can assume jurisdiction in a challenge seeking to set aside the ruling of the Court of Appeal that the election of the President must be on the basis of “valid votes.”
President of the CCJ, Justice Adrian Saunders, who led a panel of five judges, made the announcement on Wednesday (July 1) after hearing more than five hours of legal arguments virtually on whether the CCJ has jurisdiction to hear the case filed by People’s Progressive Party/Civic’s (PPP/C’s) General Secretary, Bharrat Jagdeo and Presidential Candidate, Irfaan Ali; and if it has jurisdiction, whether the Court of Appeal’s decision that the words “more voters are cast” in Article 177 (2) (b) of the Constitution are interpreted to mean “more valid votes are cast,” should be upheld or set aside. The ruling will be delivered at 15:00hrs on Wednesday, July 8, 2020.

The other judges in the case were Justice Jacob Wit, Justice Maureen Rajnauth-Lee, Justice Denys Barrow and Justice Peter Jamadar – all of whom appeared virtually.

WIDESPREAD FRAUD

In his oral submission to the panel of judges, Guyana’s Attorney General, while maintaining that the CCJ has absolutely no jurisdiction to hear an appeal to the decision of the Court of Appeal made under Article 177 (4), explained that it was widespread anomalies and cases of voter impersonation that warranted a clear indication that the President ought to be elected on the basis of “valid votes.”

“The reason for introducing valid in Article 177 (2) (b) is simple, fraudulent votes. The elections produced fraud of an unprecedented scale in the history of elections in Guyana and therefore every precaution had to be taken to ensure that in the Presidential Elections also, in Article 177 [(2) (b)], that if more votes are cast, should be crystalised,” the Attorney General explained.

At the time, he was offering clarification in response to a series of questions posed by the President of the CCJ, in addition to Justice Jacob Wit and Justice Jamadar. The judges had asked whether a President could be elected on the basis of “invalid votes,” in their quest to understand the reason behind Eslyn David’s request, in her Notice of Motion to the Court of Appeal, for there to be an interpretation of the words “more votes are cast” in Article 177 (2) (b).

Williams told the CCJ that while Article 163 of the Constitution grants the High Court exclusive jurisdiction to determine the validity of the election of any member to the National Assembly, the President does not form part of the National Assembly. He submitted that only the Court of Appeal has jurisdiction to determine the validity of the election of any person to the Office of the President. In fact, Article 177 (4) grants the Court of Appeal 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 qualifications of any person for election or the interpretation of the Constitution.

FINALITY

On the issue of jurisdiction, the Attorney General pointed out that any decision made by the Court of Appeal under Article 177 (4) is final, and cannot be the subject of an appeal in any other court including the CCJ. He argued 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. Section 4 (3) of the Caribbean Court of Justice Act, he said, limits the court’s jurisdiction. “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,” the section states.

Further to that, he made it clear that no Act can override the constitution – the supreme law of the land. Antigua and Barbuda’s Queen Counsel, Justin Simon, who appeared in association with the Attorney General, in establishing the argument, said both Section 4 (3) of the Caribbean Court of Justice Act and the Article 177 (4) of the Constitution ouster the CCJ’s jurisdiction in the case currently before the Court. “That constitutional section makes it very clear that the Court of Appeal’s decisions in respect of issues raised as to the validity of an election of a President are decisions which are final and ought not be appealed to any higher body, particularly the CCJ,” Queen Counsel Simon told the judges.

He noted that at the core of the first respondent Eslyn David’s Notice of Motion, which was filed in the Court of Appeal, was an interpretation of Article 177 (2) (b) which outlines the procedure for the election of a President. He pointed out that the Court of Appeal, in its decision, simply interpreted the words “more votes are cast” to mean “more valid votes are cast.” “This was the specific relief which was given because there were no coercive orders made by the Court of Appeal. And in giving that interpretation, the Court of Appeal was looking at the broad meaning of the words which were used in Section 96 of the Representation of the People Act. It is our respectful contention, therefore, that what was sought was an interpretation of a Constitutional provision, and as such, we submit that…Article 177 (4) gives to the Court of Appeal, in no uncertain terms, the exclusive jurisdiction to hear the motion which had been filed by the first respondent,” the Antiguan and Barbadian Queen Counsel submitted to the court. He iterated that on the basis that the decision was made under Article 177 (4), it is final.

Jurisdiction aside, he asked the judges what is the harm in giving a liberal interpretation of the words identified by David in Article 177 (2) (b). Amid contentions by Jagdeo and Ali’s attorneys that David’s case ought to have been filed in the High Court via an Elections Petition, Queen Counsel Simon turned the CCJ’s attention to the case – Reeaz Holladar v the Returning Officer, in which, the Court adjudicated on the matter outside of an Elections Petition, albeit that the issue arose during the elections process. Reference was also made to the case –Ulita Moore v the Guyana Elections Commission (GECOM), which was also filed and adjudicated upon during the ongoing elections.

Interjecting, Justice Saunders, while pointing to Article 177 (4), asked the Queen Counsel, who is the person about whom a question was being raised as to the validity of the election as President. In responding, the Queen Counsel said it spoke to whomever was going to be President from the List of Candidates with the most votes. Pressing Queen Counsel Simon for more answers, the CCJ President then asked: “when it (Article 177 (4)) goes on to speak about the qualification of a person, if we don’t know the identity of the person, how can we begin to assess the qualification of someone who we don’t know, who we can’t identity?”

QUALIFICATION
In response, Queen Counsel Simon told the Court: “With respect, I do not think that is the proper way to look at it because if we look at the section, what it says clearly, in so far as that question depends upon the qualification of any person for election. So the qualification of any person for election, presumes that there is a particular candidate, one looks at the qualification of that candidate.”

Again, Justice Saunders questioned who is the Candidate? The Queen Counsel said in this case, it speaks to the election of either of two candidates. Simon urged the Court not to limit the interpretation of the Constitution. “I would respectfully submit especially as we are looking at the Constitution that what we ought to be doing is giving it a liberal interpretation because what is important is that the process is followed, and more importantly, while the Constitution has provided that the decision of the Court of Appeal would be final, that the matter actually goes directly to the Court of Appeal, is to ensure that in terms of time that there is no wastage or lengthy timeframe,” Queen Counsel Simon told the CCJ.

Trinidad and Tobago’s Senior Counsel John Jeremie, who appeared on behalf of Eslyn David, also argued that the CCJ had no jurisdiction to entertain the appeal brought by Ali and Jagdeo on the basis that the Court of Appeal’s decision is final due to its exclusive jurisdiction. While the PPP/C’s lawyers suggested that David, in approaching the Court, was really seeking an interpretation of the Order No. 60 and not Article 177 (2) (b), Jeremie, like the Attorney General and Simon, made it clear that key to David’s case was the interpretation of the Constitution, and it was the judicial responsibility of the Court of Appeal to assume jurisdiction.

“I say the Court of Appeal had jurisdiction. But even if I am wrong, I am saying that this court lacks the jurisdiction to entertain this appeal because the clear intendment of the Constitution and the agreement is that disputes of this type end in the Court of Appeal even if the Court of Appeal was wrong on the question of Jurisdiction,” Jeremie told the judges.

DISJUNCTIVE CONDITIONS
In support of his argument, Jeremie like the Attorney General, relied on the Eusi Kwayana 1980 application, in which the Court of Appeal at the time indicated that the conditions laid out in the Article are disjunctive, and therefore not dependent on each other. “Those words do not require any interpretation. They are the words of the final court of appeal in Guyana. The case tells us how the section is to be construed,” Jeremie argued even as he maintained that there can be no challenge to the Court of Appeal’s decision.
Interjecting, Justice Wit, in putting forward a hypothetical situation, asked the Trinidadian Senior Counsel if the Court of Appeal in its ruling had determined that the elections were to be considered by the term “more invalid votes cast,” if it would still be correct in jurisdiction.

Jeremie, in response, said as strange as that may be, the Appeal Court’s decision would still be final.

“In respect of the sovereign pronouncements by the Guyanese parliament in enacting the CCJ Act and in respect of the provisions of the Constitution, on the authority as silly as that proposition is, this court has no jurisdiction to trespass on that once it is the provisions of Section (4) (3) are there and once the provisions are cast in terms of the constitutional provision,” he submitted.

He added: “That is the result which deeming provision contained in the constitution dealing with exclusivity and finality and the conjoined effect of the CCJ Act Sect 4, which is the conclusion that we are drawn to. It is a position which is well settled by authority and which has never been a subject of rebuke.”

Jeremie appeared in association with Attorneys-at-Law Keith Scotland, Mayo Robinson, Roysdale Forde SC, Timothy Affonso and Rondelle Keller. Senior Counsel Reginald Armour of Trinidad and Tobago, who represented the interest of the A Partnership for National Unity + Alliance for Change (APNU+AFC) coalition, also put forward similar arguments, and asked that the Court refuse the PPP/C’s application for special leave.

NO JURISDICTION
Trinidad’s Senior Counsel Douglas Mendes, who appeared on behalf of the PPP/C, while confirming that the CCJ has no jurisdiction to hear an appeal to a decision made under Article 177 (4), submitted that the Court of Appeal had no jurisdiction to hear the case, and its decision was bad in law.

On that basis, Mendes, whose submissions were endorsed by Senior Counsel Ralph Ramkarran and Attorneys-at-Law Kashir Khan and Timothy Jonas, argued that the CCJ had jurisdiction to hear the appeal, and in hearing the appeal should set aside the decision of the lower court. Further, the attorneys asked the Court to order that the Chief Elections Officer, Keith Lowenfield’s Elections Report submitted on June 23, 2020 be set aside. This request came notwithstanding the fact that the CCJ last week indicated that it cannot undo what has already been done. The Chair of GECOM, Justice Ret’d Claudette Singh, who opted not to actively participate in the case, has indicated that she will respect the decision of the CCJ. She is being represented by Attorney-at-Law Kim Kyte-Thomas.