WHAT a difference a few days could make in a journey that has lasted over four months. On Wednesday last, the Caribbean Court of Justice (CCJ) handed down what many consider to be a defining decision. First, the CCJ was asked to determine whether it had jurisdiction to hear a case which emanated from the Guyana Court of Appeal (CoA). Second, if it found it had jurisdiction, it was asked to determine whether the CoA itself has jurisdiction to hear the contested case. These matters, of course had great significance for the outcome of the ongoing election impasse in Guyana.
To the surprise of many observers, the CCJ ruled that it had jurisdiction to hear the case and proceeded to strike down the CoA’s ruling and invalidate all actions that flowed from it. We say surprising, because both the Guyana constitution and the CCJ Act explicitly barred the CCJ from jurisdiction to hear the matter. The Constitution gave the CoA final jurisdiction over any matter that fell under Article 177 (4), which the CoA relied on to hear the case in question. Further, Section 4 (3) of the CCJ Order prohibits the court from hearing any matter decided on by a final court in a Member State.
Yet, despite the above barriers, the CCJ found that it had jurisdiction by invoking its standing as Guyana’s court of last resort. It reasoned that this standing gave it jurisdiction to hear matters of great importance. In so doing, it used a narrow reading of both Article 177 (4) of Guyana’s Constitution and Part 4 (3) of the CCJ Act. Many legal scholars have since described the ruling as a form of judicial activism that has the effect of legislating from the bench. Some political scientists have gone even further, by labeling it a political act that could be viewed as both direct and indirect entanglement in Guyana’s partisan politics.
Having said that, the CCJ steered clear of making any coercive orders as was requested by the lawyers representing the PPP/C and the smaller parties. Those parties had asked the court to instruct the Chief Elections Officer about what should be considered a valid vote. Further, the court virtually invalidated the Recount Order (60) which the CoA had used to arrive at its conclusion that “more votes” in the Constitution means “more valid votes”. The Order had in effect changed the definition of a valid vote from the standard definition in the Representation of the People’s Act to “a credible vote”.
By invalidating the Recount Order, the CCJ has also invalidated any outcomes of the recount exercise. So, when the GECOM Chair requested a report from the CEO, based on one of the reports from the recount, she was actually asking him go against the ruling of the CCJ, which said that the Recount Order cannot usurp the Constitution or the Representation of the People’s Act. The CEO duly pointed that out in his response to her request. He also drew to her attention that the CCJ ruled that any certified votes must be those certified by the Returning Officers. In any case, it should be clear that the Chair cannot ask the CEO to produce a report, based on her advice. As Attorney-General Basil Williams pointed out, she would be acting on her own advice, which is prohibited.
One would have expected the Chair to recognise the conundrum in which the Commission was placed by the CCJ ruling and change course. But she virtually resubmitted the identical request to the CEO. And the CEO submitted a report which, from all indications, is based on the certified declarations of the ten Returning Officers which had been put in abeyance by GECOM when it embarked on the recount exercise. The report gave the APNU+AFC a one-seat majority.
In many respects, the CCJ ruling has had unintended consequences. Instead of producing the outcome that the PPP/C and presumably GECOM’s Chair were hoping for, it has walked the election way back to the pre-recount period. In hindsight, maybe, Ulita Moore and her lawyers were correct in their reasoning that the recount was unconstitutional. Although the CCJ did not explicitly say so, one can imply that from its ruling. It is now up to GECOM to proceed. The straightforward thing to do is to accept the CEO’s report and declare the winner of the election. But after all we have seen in these four months and more, that may not be that straightforward. So, Guyana awaits GECOM. Clearly, the PPP/C would be disappointed at the turn of events, but decisions have consequences. That Party may well rue some decisions it made along the way. As for GECOM, the Chair and her majority in the Commission must take responsibility for their decision not to annul the elections when that opportunity arose.