—–AG maintains Recount Order null and void
ATTORNEY General Basil Williams, on Friday, argued that the Chair of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh is constitutionally bound to declare the Leader of the A Partnership for National Unity + Alliance For Change, David Granger, as the President Elect in accordance with the advice tendered by the Chief Elections Officer (CEO), Keith Lowenfield.
In his virtual appearance before Chief Justice (ag) Roxane George-Wiltshire, Williams – the fourth named respondent in the Misenga Jones Case – told the High Court that though the Chief Elections Officer submitted his Elections Report in accordance with the Article 177 (2) (b) of the Constitution and Section 96 of the Representation of the People Act, the Chair of the Elections Commission has rejected the report.
Such, he argued, is a constitutional breach. The report indicated that more votes were cast in favour of the A Partnership for National Unity + Alliance For Change (APNU+AFC), for which President David Granger is the Presidential Candidate. “The Chairman of the [Elections] Commission was obliged to then declare him [David Granger] as having been elected under the said Article 177 (2) (b); that has not happened, and so we have a constitutional crisis in that regard,” the Attorney General told Justice George-Wiltshire during a five hour marathon court hearing on Friday.
According to Article 177 (2) (b), the Presidential Candidate of the List with the most votes “shall be deemed to be elected as President,” and shall also be declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Elections Officer.
Prior to the CEO’s submission on July 11, the Chairman of the Elections Commission had ordered him to compile an Elections Report not only in accordance with the Constitution and the Representation of the People Act but also on the basis of the data generated during the May-June National Recount triggered by Order No. 60. But when the Chief Elections Officer sought clarification on the basis that the National Recount contradicted the Constitution, the Representation of the People Act and the ruling of the Caribbean Court of Justice (CCJ) in the case – Irfaan Ali and Bharrat Jagdeo v. Eslyn David – he was met with another “missive” instructing that the Certificates of Recount form the basis of the Elections Report.
In issuing her instructions to the Chief Elections Officer, Justice Singh had relied on Section 18 of the Election Law (Amendment) Act, which indicates that the CEO is subject to the direction and control of the Commission but the Attorney General submitted to the Court that Section 18 cannot override the provision of Article 177 (2) (b). “It is an Act of Parliament, and its intentions are in conflict with Article 177 (2) (b) and therefore, to that extent…it is void and it has to go,” Williams said, while adding that Section 22 of the Election Law (Amendment) Act, which was relied upon to bring into effect Order 60, also poses a similar problem.
Dubbing the instructions of the GECOM Chair as unconstitutional, Williams noted that Order 60 cannot be brought into conformity with Article
177 (2) (b), which in plain and unambiguous words makes the advice of the Chief Elections Officer based on information furnished by the Returning Officers in the 10 Electoral Districts the only evidentiary basis for a declaration by the Chairman.
In directing the Chief Justice to his written submissions, the Attorney General said there is a clear attempt to strip the Chief Elections Officer of his
duties as outlined in the Constitution and the Representation of the People Act. “Moreover, Order 60 purports to strip the CEO of his constitutionally indispensable advisory role. The overriding and overarching principle in all of this, is the supremacy of the Constitution which is entrenched at the deepest level possible. These arguments, that the purported reliance by GECOM on Sections 22 and 18 to avoid the prescriptions of Section 96 of the Representation of the People Act, and Article 177 (2) (b) of the Constitution itself is incompetent and impermissible, finds justification when the legislative history and background of Article 177 (2) (b) is considered,” Williams submitted to the Court.
Interjecting, Justice George-Wiltshire asked the Attorney General what the Elections Commission should do if the advice of the Chief Elections Officer is flawed. In response, he said that the Commission’s only recourse would be to the High Court via an Elections Petition. Notably, an Elections Petition could only be filed before the High Court within 28 days of the declaration of the results of an elections.
It was noted that while there have been many allegations, in the case before the Court, the Chief Elections Officer submitted his Elections Report based on declarations made by the Returning Officers as required by Law. Turning the Court’s attention to the judgment of the CCJ in the Ali and Jagdeo Case, Williams told the High Court that the country’s apex Court warned against creating a “new electoral regime,” and it was on the basis that the National Recount created such, the Chief Elections Officer relied solely on the declarations made by the Returning Officers. In support of his argument, he pointed to paragraph 37 of the CCJ’s judgment, which reads: “The Presidential Candidate on the list for which more votes have been cast than any other list is deemed to be elected as President, and the Chairman of GECOM must so declare. Both allocation of seats in the National Assembly and the identification of the successful Presidential Candidate are determined on the sole basis of votes counted and information furnished by Returning Officers under the Representation of the People Act.”
He noted too that the CCJ, in its ruling, also made it clear that no Order could impact the Constitution or create a new electoral regime. In that section of its ruling, the CCJ stated that: “The Court also notes that an Order issued by GECOM in any particular context can never determine how the Constitution is to be interpreted. It is a matter of elementary constitutional law that if ordinary legislation is in tension with the Constitution, then the courts must give precedence to the words of the Constitution and not the other way around. With respect, the notion that Order 60 could either impact interpretation of the Constitution or create a new election regime at variance with the plain words of the Constitution is constitutionally unacceptable.”
According to the Attorney General, the CCJ erased Order No. 60 from the laws of Guyana.
“I am respectfully submitting that the Chairman of GECOM must declare David Arthur Granger as having deemed elected from the March 2nd General and Regional Elections as President of the Cooperative Republic of Guyana,” the Attorney General put to the Court.
Williams had appeared in association with Attorney-at-Law Maxwell Edwards, who argued on the High Court’s jurisdiction to hear the case brought by Jones, in addition to the issue of the “constitutionality” of Section 22 of the Election Law (Amendment) Act.
From the onset, Edwards, in his virtual presentation to the Court, stated that the Court had jurisdiction even as he referenced to the inherent jurisdiction of the Court which was invoked in the case Reaz Holladar v Clairmont Mingo and others.
In that case the Chief Justice had said that “…there can clearly be cases where the Court’s supervisory jurisdiction can be invoked to ensure the correct and smooth operation or progress of the elections proceedings or process.” Notably, the Court’s jurisdiction was invoked in early March, 2020 days after the General and Regional Elections were held in Guyana. The High Court will hand down its judgment on Monday, July 20, 2020