CCJ sets aside Court of Appeal ruling
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…throws out CEO report, assumes jurisdiction in elections matter

By Svetlana Marshall
THE Caribbean Court of Justice, in assuming jurisdiction to hear an application filed by People’s Progressive Party Civic (PPP/C), has set aside the decision of the Court of Appeal on the interpretation of the Constitution; and invalidated the Elections Report submitted by the Chief Elections Officer, Keith Lowenfield.
The judgment was handed down virtually on Wednesday (July 8) by President of the CCJ, Justice Adrian Saunders in the presence of Justice Jacob Wit, Justice Maureen Rajnauth-Lee, Justice Denys Barrow and Justice Peter Jamadar – all of whom formed part of the panel of judges that presided over the case filed by PPP/C’s General Secretary, Bharrat Jagdeo and Presidential Candidate, Irfaan Ali.

Justice Saunders, in handing down the judgement, said while decisions made under Article 177 (4) of the Constitution are final as indicated by the Constitution and the Caribbean Court of Justice Act, the Court of Appeal had no jurisdiction to hear the application filed by North Sophia voter, Eslyn David.
David, in a Notice of Motion, had asked the Court of Appeal to interpret the words “more votes are cast” in Article 177 (2) (b) of the Constitution, and by a two-one majority on June 22, the Appellate Court, in its ordinary jurisdiction under Article 177 (4), ordered that the words be interpreted to mean “more valid votes are cast.”

But the CCJ President said David’s application was not based on the qualification of a President or interpretation of the Constitution as required by Article 177 (4) but rather Order No. 60, which triggered the national recount.

“Article 177 (4) only affords jurisdiction to the Court of Appeal if the question raised as to the validity of an election of a president depends upon the qualification of any person for an election or on the interpretation of the Constitution,” Justice Saunders explained.

He added: “It is evident that from the nature of Ms David’s complaints and issues she placed before the Court of Appeal, that the questions raised by her, did not depend upon the qualification of any person for election or on the interpretation of the Constitution. Ms David’s complaint was really about the impact of Order 60, and about the conduct of GECOM; [and] what the Court of Appeal, majority did, did was to embark upon an exercise of interpreting Order 60.”

The CCJ President said that there was no need for the Court of Appeal to interpret Article 177 (2) (b) of the Constitution because it needs no interpretation.
“Article 177 (2) (b), in fact, requires no refinement. That article, in plain and simple language, has always said what it meant and meant what it said. There was no need for an interpretation of that article or any other article of the Constitution,” Justice Saunders said.

He made it clear that there was nothing in David’s application to trigger the Court of Appeal’s jurisdiction under Article 177 (4). “The Court of Appeal lacked jurisdiction to make the orders that were made. Those orders were not made under Article 177 (4) of the Constitution,” the CCJ President ruled.

While David’s Attorney, Senior Counsel John Jeremie had argued that Court of Appeal had interpreted the Constitution as provided for in Article 177 (4), such an argument did not sit well with the regional court on the basis that the concept of “valid votes” is well known to the legislative framework governing the electoral process. In support of the CCJ’s position, Justice Saunders pointed to the Section 96 of the Representation of the People Act that references to the phrase “valid votes” and in doing so calls on the Chief Election Officer to calculate ‘the total number of valid votes of electors which have been cast for each list of candidates.’

“Validity in this context means, and could only mean, those votes that, on their face, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid votes” count towards a determination of not only the members of the National Assembly but, incidentally as well, the various listed Presidential candidates,” Justice Saunders explained.

It was noted that if the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond the validation exercise, as was done by A Partnership for National Unity + Alliance For Change (APNU+AFC) Agent, Joseph Harmon, such could only be pursued under Article 163 of the Constitution by way of an Elections Petition within 28 days of the declaration of the results of the elections.

On the basis that the Court of Appeal had no jurisdiction to hear the case, the CCJ ruled that the finality clause in Article 177 (4) was inoperable, and as such, it had jurisdiction to hear and determine the application by Ali and Jagdeo.

Justice Saunders said the flawed interpretation of the Constitution by the Court of Appeal has resulted in an unlawful validation exercise by the Chief Elections Officer.
“By the unnecessary insertion, into Article 177 (2) (b), of the word “valid”, the Court of Appeal impliedly invited the CEO to engage, unilaterally, in a further and unlawful validation exercise trespassed on the exclusive jurisdiction of the High Court established by Article 163. It was inconsistent with the Constitutional framework for the CEO or GECOM to disenfranchise tens of thousands of electors in a seemingly nontransparent and arbitrary manner without the due processes established in Article 163 and the National Assembly (Validity of Elections) Act,” the CCJ President said.

The CCJ’s decision places the electoral process back into the hands of the Guyana Elections Commission (GECOM), and according to the apex court, it is now for GECOM to act. Justice Saunders, while invalidating the Elections Report which was submitted on June 23, said GECOM must ensure that the CEO submits a report in accordance with its directive of June 16, in an effort to proceed along the path directed by the laws of Guyana.

“As Guyana’s final court, we cannot, however, pretend to be oblivious to events that have transpired since December 2018. Indeed, we have had to pronounce on some of those events. It has been four months since the Elections were held and the country has been without a Parliament for well over a year. No one in Guyana would regard this as a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy. Now, the law must run its course,” the CCJ President said.

He noted that the court’s judgment was unanimous.

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