– political commentators, lawyer

WITH the fate of the country on the line, some lawyers and political analysts believe that the Caribbean Court of Justice (CCJ) should have treated with Guyana elections matter in a more meticulous manner and its failure to do so will likely result in far-reaching consequences.

On Wednesday, in assuming jurisdiction to hear an application filed by People’s Progressive Party Civic (PPP/C), the CCJ 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 (CEO), Keith Lowenfield.

The CCJ’s decision places the electoral process back into the hands of the Guyana Elections Commission (GECOM) and the CEO must now submit a report in accordance with the June 16 directive, to submit his report based on the results of the recount.

Appearing as guests on Thursday on the St. Vincent and the Grenadines programme, ‘Early in the Morning with Jerry S. George’, were Attorney-at-Law, Brenden Glasford and Political Scientists, Dr. David Hinds and Aubrey Norton.

Giving his position, Glasford said that he believed that the entire matter was rushed while the legal explanation as to why the CCJ assumed jurisdiction on the matter was “glossed over” and lacked clarity.

“There should have been two separate hearings, one on the point of jurisdiction and the second hearing on the substantive legal issues. What we’ve seen from the hearing is that everything was rather rushed and jurisdiction kind of got lost in translation and I still do not think, having read the written judgement, that it was properly addressed,” he said.

“It should have been a more hotly contested issue both by the lawyers and the judges…the Court should have spent some time, distinguishing how one of its previous decisions is not applicable to the present case.”

Some of the other actions that Glasford took issue with was the Court’s failure to speak to the Patrick Hill v Sagicor Life Inc. [2018] CCJ case of Barbados which was raised by Trinidad and Tobago Attorney, Senior Counsel (SC), John Jeremy.

According to the lawyer: “A case was actually brought up, Hill v Sagicor, a case from Barbados which was decided in 2018 which I have yet to see the CCJ address. Maybe they thought it wasn’t relevant but I personally thought that, having read it…it dealt with an identical provision in the Barbados law that had a similar finality clause. I think, without addressing that case, it is possible that the decision of the Caribbean Court of Justice could be seen as per incuriam, that is, made without considering all the authorities.”

Meanwhile, Dr. Hinds said that even before the Court made its ruling, based on the way in which the questions of the judges were posed during the hearing, it was clear to him that a narrow reading would be taken of Article 177 (4) of the Constitution to somehow allow for the assumption of jurisdiction.

“I think they responded to a question that was frontally put by Ralph Ramkarran’s Senior Counsel from Guyana who argued that this thing has been going on too long, we might even have to come back before you, so the Court should act…and I think the Court responded to that. You could have heard from their questioning during the hearing that they were looking for jurisdiction.”

In his opinion, the CCJ’s decision to assume jurisdiction on the said matter will have negative ripple effects across the Caribbean and on those who hold the Court as their apex Court.

“I think there was massive legislation from the Bench that has a political effect since it was clear that the Court had no jurisdiction under [Article] 177 (4) from the Guyana Constitution and [Section] 4:3 from the CCJ Act. Any action by the Court, in my estimation, could not be a legal action,” Dr. Hinds stated, adding: “I think it was reckless behavior on the part of the Court.”

Norton agreed with the aforementioned positions. He pointed to remarks he had made prior to the Court’s ruling that should it assume jurisdiction on the said matter, it would be plunging itself into a future “credibility crisis”.

He said while one would have preferred to view the Court’s ruling as impartial, there were clear cases, as mentioned by Glasford, in which the CCJ selectively omitted key information.

“One of the elements that point clearly that it was political, was the way they were selective in using Order No. 60 of 2020. Here they were on the one hand insinuating, ‘use the tabulation’, but on the other hand, they weren’t prepared to discuss the actual [Order] in its entirety because to do that would have established that they needed to have reconciliation and verification before the declaration of valid votes. It is at that point, it became obvious to me that it was a political ruling than a legal ruling,” he said.

However, on the other hand, Glasford disagrees with Dr.Hinds and Norton that the CCJ made a “political decision”, noting that the Court quoted supporting points of law at each aspect of its decisions. As a lawyer, he said that he is more concerned about whether the correct decision was made based on the law.

“While I understand their perspective, I don’t think it is correct to say it is a political decision. It is a legal decision with grave political implications, especially the tone in which the decision was given,” he contended.

However, Norton maintained that, in his deduction, the matter became political when the Court decided to use Order No. 60 selectively and not in its entirety.

“When you have those inconsistencies, it is not people that are imputing anything to the CCJ, it’s the Court system imputing it to itself,” he said.

As it relates to the Court’s treatment of Order No. 60, Glasford has observed that the procedural provisions were dealt with and not the recitals, both of which he said the Court had a duty to address. “It comes back to the extreme speed with which they heard the matter. I don’t think that they had the time to consider all the finer points in the matter that has such grave consequences; it is their duty to do so.”

Meanwhile, Dr. Hinds said that the CCJ, by setting aside the Chief Elections Officer’s report, which was based on the stipulations of Order No. 60, the Court has not provided Guyana any more clarity than it previously had.

“They set out to pull the rug from under the feet of those who are arguing that you should use the recount observation Order but, in so doing, they’ve pulled the rug from under the feet of any tabulation, any declaration that has to do with the recount. My own view, is that they’re walking back everything and, by this morning, I think we’re back to the 10 declarations that are theoretically still sitting there in the hands of Mr. Lowenfield,” he said.

Likewise, Norton said that while he does not believe that it was the Court’s intention to place Guyana “right where it started”, such was the reality of the assumption of jurisdiction and the subsequent ruling.

With the CCJ being Guyana’s apex court, Glasford put into perspective: “Having that decision from the CCJ, another Court in Guyana is not going to touch that interpretation again and whatever has to happen in the future, a decision has to be made in the context of what was said and they have left little room for doubt about what they see the law in Guyana to say in relation to valid votes and in relation to the recount.

He said that what the CCJ did, in effect, was to “sever parts of the recount Order” to state that whatever aspect is not in line with the Representation of the People’s Act is not applicable. He believes that there could be upcoming judicial review cases coming to the Court, depending on what the Elections Commission does next.