…..Dr. Hinds says High Court ruling in Elections case has left many questions

By Svetlana Marshall
POLITICAL Scientist, Dr. David Hinds, in supporting the move to appeal the High Court’s decision in the latest elections case, said the judgment of Chief Justice (ag) Roxane George-Wiltshire failed to adequately address critical issues linked to the national recount and the constitutional and statutory roles and responsibilities of the Chairman of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh and the Chief Elections Officer (CEO), Keith Lowenfield.
In her Monday, July 20 decision in the Misenga Jones case, the Chief Justice ruled that the Recount Order (Order 60) and by extension the national recount cannot be invalidated, and as such the data, generated through that process, must be used for the declaration of the results of the General and Regional Elections held last March. In support of her decision, Justice George-Wiltshire had relied on the judgment of the Caribbean Court of Justice (CCJ) in the case – Irfaan Ali and Bharrat Jagdeo v Eslyn David and others.

But in an interview with Guyana Chronicle on Tuesday, Dr. Hinds said the judgment of the High Court left much to be desired. “As far as the legal proceeding is concerned, the ruling of the High Court [has] left a lot of matters unresolved,” he told this newspaper.

According to the Political Scientist, the High Court was given the golden opportunity to effectively address the constitutionality of the Recount Order, and its impact on the country’s electoral system when considered together with the Constitution and the Representation of the People Act and other Electoral Laws. It was explained that while the CCJ “touched” on the Recount Order, in an effort to determine whether or not the Court of Appeal had jurisdiction to interpret Article 177 (2) (b) of the Constitution, and whether its interpretation of the Constitution was correct, Order 60 was never the subject of the case.

According to him, the Recount Order was never fully adjudicated upon prior to the filing of the Misenga Jones Case. For him, the Misenga Jones case presented the opportunity for the Court to determine whether Order No. 60, in facilitating the 33-day National Recount, had created a “new electoral regime” in conflict with the Representation of the People Act, and whether it clothed the Elections Commission with powers to determine the validity of the Elections in breach of Article 163 of the Constitution.

The CCJ, in its ruling, had stated that no order could be in tension with the Constitution. “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,” the CCJ had ruled.
Noting that the recount was not merely numerical, Dr. Hinds pointed to the fact that the recount, in keeping with the order, comprised the tabulation of votes but also the reconciliation of the ballots issued with the ballots cast, destroyed, spoiled and stamped. During the process, the authenticity of the ballots was also determined and the number of voters listed and those crossed out as having voted was also taken into consideration among other things. Dr. Hinds said clearly the recount encompassed quantitative and qualitative components, and one aspect cannot be validated while the other dismissed.

“We cannot talk about the results of the Recount Order without taking into consideration the qualitative aspect of the report. Because if one reads the recount order it was very clear that it was engaging not in a numerical recount but a recount to establish the credibility of the [elections] and there is a whole chapter that talks about the reconciliation of votes in the box with the statutory documents such as the counterfoils,” the Political Scientist said while expressing his disappointment that the court had not addressed both components of the recount.

Justice George-Wiltshire, in her ruling, had said that the CCJ endorsed the national recount. “…as determined by the CCJ, unless overturned by a court in an elections petition, the only data that could be used for the declaration of the results of the elections would have to be the recount results or data,” the Chief Justice ruled.
But the Political Scientist said the courts cannot be selective in their decisions, iterating that the recount must be treated as a whole. He posited that because the primary objective of the recount was to determine a “final credible count” all the data captured during the exercise must be taken into consideration.

“The Order was very, very clear that it set out to determine the credibility of the vote, and therefore any use of that data, has to be use of all the data. And I think the CCJ did not treat with that adequately, partly because that was not before the CCJ. The CCJ only touched the Recount Order in so far as it used it to overrule the decision of the Court of Appeal and in that sense the legality of the Recount Order was not substantially before the CCJ, so the CCJ just made little reference to it,” Dr. Hinds said.
In its ruling, the CCJ had said that issues such as voter impersonation as raised by the Campaign Manager of the A Partnership for National Unity + Alliance For Change (APNU+AFC), Joseph Harmon, and the irregularities cited by the Chief Elections Officer, Keith Lowenfield must be addressed in an elections petition before the High Court as prescribed by Article 163 and the National Assembly (Validity of Elections) Act.

But while acknowledging the ruling of the CCJ, Dr. Hinds pointed out that in that very judgment indicated that the President and Members of the National Assembly could only be elected based on information provided by the Returning Officers in accordance with the Representation of the People Act.

That paragraph 37 of the CCJ judgment 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 the 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 the Returning Officers under the Representation of the People Act.”
Dr. Hinds drew attention to the fact that the Returning Officers were not part of the National Recount, and concluded that the CCJ, implicitly invalidated the national recount and its Order.

“Although the CCJ did not explicitly invalidate the recount order, it did so implicitly. One can imply from what it did, that the recount Order was invalidated,” Dr. Hinds maintained, nothing withstanding judgement of the High Court that the CCJ had endorsed the recount.

However, he expressed the view that the CCJ’s just contradicted itself.

“If you read the CCJ’s ruling, you would get the impression that the ruling was written in parts and they did not reconcile the parts, and therefore what people are doing, they are going in the ruling and taking out parts of it to use to make their case but that is the CCJ’s fault because it did not reconcile the various parts,” he opined.
He maintained that the High Court had the opportunity to reconcile those tensions within the CCJ ruling but it did not, and on that basis, he said Jones’ appeal is more than justifiable.

“I also think that the Court did not adequately resolve, the tension between the authority of the Commission and the authority of the CEO,” Dr. Hinds said. The Chief Justice in her ruling had said that the CEO is subject to the directives of the Elections Commission.