….AG tells Appeal Court it is the CEO who must advise Elections Commission, not the other way around
…Maintains Recount Order in conflict with Constitution
ATTORNEY General Basil Williams said that, contrary to the decision of the High Court, it is the Chief Elections Officer (CEO), Keith Lowenfield, who is constitutionally bound to advise the Guyana Elections Commission (GECOM) on the results of the General and Regional Elections, and not the other way.
In his July 11 Elections Report, the Chief Elections Officer had advised the Elections Commission that, based on the March Declarations, the A Partnership for National Unity + Alliance For Change (APNU+AFC) had won the General and Regional Elections held last March, but the Chairman of the Elections Commission, Justice (Ret’d) Claudette Singh, in rejecting that report, said that the Elections Report must be compiled using “valid votes” tabulated during the May-June National Recount.
In her High Court decision in the case Misenga Jones v the Guyana Election Commission and others, the Chief Justice (ag), Roxane George-Wiltshire, said the Chief Elections Officer is “not a lone ranger,” and is therefore subject to direction and control of the Elections Commission as indicated in Section 18 of the Election Laws (Amendment) Act. Indirectly, the Chief Elections Officer was ordered to adhere to the command of the Chairman of the Elections Commission.
Both Jones and the Attorney General are now challenging the High Court’s decision.
In his written submissions to the Appellate Court, the Attorney General submitted that Article 177 (2) (b) of the Constitution is “unambiguous,” explaining that there are three mandatory requirements in the Article – one, the Presidential Candidate with the most votes be deemed to be elected; two, the Chairman of GECOM shall declare the Presidential Candidate to be elected President and thirdly, the declaration is based on the advice of the Chief Elections Officer.
“Nothing in Article 177 (2) (b) speaks to the Chief Elections Officer being directed by the Chairman or the Commission in tendering his advice or the Chairman making a declaration based on anything other than the advice of the CEO,” the Attorney General, through his Lawyer, Maxwell Edwards, said.
In support of his position, Edwards alluded to the book ‘Understanding Statutes’ and the case of Vandertoll v Kentucky. He submitted like “shall” the words “acting only in accordance” must be given their plain meaning in order to arrive at the true intent of the legislature.
“The role of the CEO under the Constitution must be seen as separate from his day to day administrative functions where he is under the direction of the Commission. The promulgation of this specific advisory role to the level of the Constitution must not be viewed as ordinary and taken lightly as elections are to be seen as being free of interference even the interference of the Commission which are made up of political Commissioners. Accordingly, the words ‘acting only in accordance with the advice of the Chief Elections Officer’ are deliberate and clear and have to be given itheir true meaning,” Edwards told the Court.
He submitted that the Chairman of the Elections Commission does not have a discretion as Article 177 (2) (b) of the Constitution clearly states that she must act solely on the advice of the Chief Elections Officer.
In issuing her instructions to the Chief Elections Officer, the Chairman of GECOM had relied heavily on Section 18 of the Election Laws (Amendment) Act but the Attorney General, through his Attorney, argued that Section 18 is not superior to the Constitution – the supreme law of the land.
Article 8 of the Constitution states: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
Further in support of his argument, Edwards alluded to the case – Collymore v Attorney General of Trinidad and Tobago (1967), which indicates that “no one, not event Parliament, can disobey the Constitution with impunity.” As such, he argued that Section 18 cannot be used to curtail the significant role of the Chief Elections Officer under the Constitution.
He further submitted that Section 18 is a plain breach of the separation of powers doctrine for Parliament to purport to transfer legislative functions of amending principal or primary legislation to an executive body – GECOM.
It was also submitted that Article 177 and Section 96 of the Representation of the People Act, when read together, empower the Chief Elections Officer to determine valid votes, and only him.
The Attorney General, through his lawyer, told the Appellate Court that based on the Elections Report submitted, Justice Singh was constitutionally bound to declare the Presidential Candidate of the APNU+AFC List of Candidates, David Granger, President elect.
“It is therefore submitted that the Chairman of the Guyana Elections Commission (GECOM had abdicated her duty to have declared the Presidential Candidate on the APNU+AFC list as the elected President, she being obliged to act only on the advice of the CEO, tendered to the Commission pursuant to Article 177 (2),” he argued.
Edwards also rejected the High Court’s contention that it could not have invalidated Order No. 60 – the instrument used to facilitate the National Recount. Such an Order, he argued, could not have been invoked by the Elections Commission because it is inconsistent with the Article 177 (2) (b) and Section 96 of the Representation of the People Act. He had also rejected the High Court’s decisions that the issues raised in Jones’ case are res judicata.
But the People’s Progressive Party/Civic (PPP/C) General Secretary, Bharrat Jagdeo and Presidential Candidate, Irfaan Ali, through their lead attorney Trinidad and Tobago’s Senior Counsel, Douglas Mendes, asked the Court of Appeal to uphold the High Court’s decision.
While the Attorney General has argued that it is the CEO, who is legally bound to advise the Elections Commission, Mendes told the Court that, as an officer employed by the Elections Commission, the CEO is subject to the direction and control of his employer. Further, he said GECOM can remove any of its officers.
“GECOM is empowered to remove and exercise disciplinary control over him, is specifically mandated by the Constitution to supervise him and, to remove all doubt, he is rendered by section 18 of the Elections Law (Amendment) Act subject to the direction and control of GECOM. There is no provision in the Constitution or any other law which gives the CEO the power to direct GECOM. Indeed, by Article 226(1) of the Constitution, GECOM is not to be subject to the direction or control of anyone,” Mendes argued.
Though the PPP/C had withdrawn the contempt of proceedings case initially filed by the late Reeaz Holladar in March due to lack of evidence, Mendes nonetheless submitted to the Court that the Region Four Returning Officer, Clairmont Mingo, had inflated the numbers in favour of the APNU+AFC. “This has now been confirmed by the recount conducted under the direct supervision of the CEO,” Mendes told the Court. He said it was the controversy surrounding Mingo’s declaration that resulted in the birth of Order No. 60 and by extension the National Recount. “The recount was to be carried out under the supervision of the CEO who was required to report on the results of the recount,” he posited. Mendes is adamant that the Order No. 60 and the National Recount are legal, and therefore must be upheld by the Court.