By Svetlana Marshall

ATTORNEY-General Basil Williams on Thursday filed a cross-appeal, challenging several aspects of the High Court’s decision in the Misenga Jones case as he takes a lead role in the push to have the Recount Order invalidated, and for the March Declarations to be upheld.

In his Notice of Intention to the Court of Appeal, the Attorney-General, through his lawyer Maxwell Edwards, said that Chief Justice (ag) Roxane George-Wiltshire’s ruling on the issue surrounding the validity of Order 60 of 2020 is res judicata ought to be set aside.

Justice George-Wiltshire, in her July 20 ruling, had explained that the matter was already adjudicated upon by the Court of Appeal and the Caribbean Court of Appeal (CCJ), and as such the High Court was bound by the decisions of the higher Courts, and could not invalidate Order No. 60, but the Attorney-General said the decision was bad in law.

He also signaled his intention to argue that the decision that “Section 18 of Election Laws (Amendment) Act No. 15 of 2000 is not in conflict, or tension with Article 177 of the Constitution, nor does it breach the separation of powers doctrine, and is accordingly not unconstitutional be set aside.”
Williams is also asking the Appellate Court to set aside the High Court’s decision that Chief Elections Officer Keith Lowenfield cannot use the 10 Declarations of the Returning Officers in the compilation of the Elections Report, as he is now required to utilise figures generated during the National Recount.
Further, he is asking that the Appellate Court set aside the decision that “the principles of res judicata and stare decisis apply to the circumstances of the Application and requires the High Court to dismiss it, given binding rulings adverse to the Applicant in the Court of Appeal and Caribbean Court of Justice.”

LAYING THE GROUNDS

In laying down his grounds for the cross-appeal, the Attorney-General submitted that the Chief Justice erred in law and misdirected herself when she misinterpreted the provisions of Article 177 (2) (b), and ruled that the Chief Elections Officer (CEO) cannot act on his own, and is subject to direction and control of the Elections Commission. It is his firm belief that the Elections Commission is bound to act on the advice of the CEO.
Additionally, Williams, through his Attorney, told the Appellate Court that the Chief Justice “erred in law and misdirected herself when she held that Section 18 is not unconstitutional, as being in conflict or in tension with Article 177.”
It is also the Attorney-General’s contention that the Chief Justice erred when she failed to rule that the Chairman of GECOM, Justice (Ret’d) Claudette Singh had abdicated her duty to have declared the Presidential Candidate on the A Partnership for National Unity + Alliance For Change (APNU+AFC)’s List as the elected President of Guyana. It is his belief that the Chair of the Elections Commission was obliged to act only on the advice of the Chief Elections Officer, tendered to the Commission pursuant to Article 177 (2) (b).

“The Honourable Chief Justice (ag) erred in law in the interpretation of Articles 162 and 177 of the Constitution, more particularly Article 177 (2) (b), when she reasoned that Article 162 permitted the Guyana Elections Commission to make Order 60 in its present form, when, had she applied (as she ought to have done) the rule of constitutional interpretation i.e generalia specialibus non derogant she ought to have concluded that the specificity of Article 177 (2) (b) does not permit Order 60 in its present form as it derogates from Article 177 (2) (b).”

He is also arguing that the principles or rules of interpretation were not applied by the High Court, which led to the “flawed” decision that Order 60 was not inconsistent with Section 96 of the Representation of the People Act and or Article 177 (2) (b) of the Constitution.

The Attorney-General also submitted that the Chief Justice erred when she ruled that the 10 declarations of the Returning Officers were overtaken by events, in particular the National Recount. According to him, those declarations were indirectly invalidated by the Court in contradiction with Article 163 of the Constitution. He further submitted that the Chief Justice failed to properly consider the written judgement of the CCJ, in particular Paragraph 52, which suggested that Order No. 60 was unconstitutional, null, void and of no legal effect.

Arguments in the substantive appeal brought by Misenga Jones against GECOM and others will be heard virtually in the Court of Appeal on Saturday, starting from 10:00hrs. Jones, through a battery of lawyers, is challenging the High Court’s decisions.