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Attorney General and Minister of Legal Affairs, Anil Nandlall, S.C.
Attorney General and Minister of Legal Affairs, Anil Nandlall, S.C.

— GECOM asks court to dismiss elections petition; ruling set for April 26

THE Guyana Elections Commission (GECOM) through its Attorney-at-law, Dominican Senior Counsel, Anthony Astaphan, on Wednesday, asked the High Court to dismiss the remaining Elections Petition, 88 of 2020, Claudette Thorne et anor v Keith Lowenfield et al.
In this matter, petitioners Claudette Thorne and Heston Bostwick, in their submissions, contend that Section 22 of the Election Laws (Amendment) Act 2000 is unconstitutional and Order 60 of 2020, which authorised the elections recount process, is invalid, null, void and of no effect.
They are also contending that the Returning Officers’ Electoral District Declarations could not have been set aside and the Guyana Elections Commission’s (GECOM) actions were unlawful and encroached upon the High Court Jurisdiction under Article 163 of the Constitution.
Order 60 was created by virtue of Article 162(1) of the Constitution and Section 22 of the Election Laws Amendment Act 2000, in order to resolve irregularities, anomalies and discrepancies before declaring the results of the elections.

Attorney-at-law, Douglas Mendes, S.C.

In responding to questions posed by the Chief Justice (ag), Roxane George, S.C., Trinidadian counsel representing the petitioners, John Jeremie, S.C, noted that the petitioners accept that there were “difficulties” in the elections process, while noting that those “difficulties” could not be resolved by GECOM but by an Election Court.
“The power to set aside elections, that power which was originally vested in the Parliament in England and in National Assembly in Guyana, that power was transferred to the court … it does not exist at common law, it could not properly be any part of the remit of GECOM to [arrogate] to itself the power to resolve disputes and the power to set aside declarations,” he said.
In making his arguments, Astaphan cited the case of Esther Perreira v Chief Elections Officer et al (1998), in which the then Justice Singh held that mere breach of the law is not sufficient to invalidate the results of an election, and the petitioners must prove “total non-compliance”.

Anthony Astaphan, S.C, attorney-at-law representing The Guyana Elections Commission (GECOM)

“We are submitting that there is nothing pleaded in this case to suggest any sort of total non-compliance with the provisions … that’s not pleaded. Mere breach is not enough, it has to be a substantial non-compliance that introduces something, introduces a principle that is hostile to the fundamental constitutional principle,” he said.
He told the court that to arrive at a breach, it must be established that the breach was of such an effect as to have an effect on the conduct of the recount.

“There was no breach, Section 22 got its constitutional genesis and status from Section 162 of the Constitution; Order 60 was entirely consistent with Section 22 and Section 162,” he said.
Astaphan elaborated that Order 60 was “transparent”, enacted in “good faith” and was intended to remove the difficulties that prevented a declaration of final results, which was pending for several months.
“In the face of these difficulties, what was GECOM to do? What should GECOM have done with the intransigent of the Returning Officer and the Chief Elections Officer and the difficultly to get cooperation for resolution of the matter,” he asked the court.
“GECOM was literally, by the Constitution and by statute, obliged to act, it was obliged to act otherwise chaos would have resulted as a result of the inability of GECOM because of the difficulties and intransigent it faced in declaring the final results as to who was properly elected in Guyana,” he said.

Counsel representing the petitioners, John Jeremie, S.C.

While maintaining that there was no breach, he argued that in the alternative, if the Chief Justice in her perusal of the arguments submitted to the court by the parties involved should find same, there were no consequence which affected the conduct or result of the recount and the petition should be dismissed.
“Even if your ladyship may find a breach, then there were no consequences which affected the conduct or result of the count and therefore in any event your ladyship should dismiss the petition,” he told the court.
Further, the Caribbean Attorney posited that the position of the petitioners that the results of the elections were affected by the recount is “wholly inadequate”.
“There must be material particulars and facts that indicate precisely how that would have been done, merely to state that is a vague and general statement and they have not indicated how that is done,” he said. In closing, he noted that Section 22 is not inconsistent with the provisions of the Constitution because of the language of the acts of Parliament which must be read subject to the overriding powers of Section 162 of the Constitution which gives GECOM a discretion on how the law is to be applied in order to remove the difficulties.

“There is tremendous commonsense in that legislation because it would be clearly not in the public interest for every time that difficulty arises that the Act must be amended by Parliament to give specific powers, it was a general delegation of authority,” he said.
“They were given wide powers but these powers were subject in the event an amendment to negative resolution; if it’s not being amended then the petitioners were obliged to show that GECOM acted illegally in making Order 60 because there was no difficulty to remove, they cannot say that, they are simply incapable and unable to make that statement to the court,” he added.
Attorney-at-law ,Trinidadian Senior Counsel, Douglas Mendes, representing, Dr. Bharrat Jagdeo in his capacity as representative of the People’s Progressive Party/Civic (PPP/C) purported similar arguments, noting that there was no excessive delegation of power to GECOM by Section 22, and that Section 22 is constitutional.

Further, representing the State, Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C, shared similar sentiments emphasising that there is the absence of material facts and no foundation is laid in the petition to establish any grounds upon which the elections can be vitiated.
“There was nothing that was out of character that was done and nothing is being alleged in any event, what is being alleged is a sterile contention that Section 22 is unconstitutional, not that Section 22 offends any constitutional provision,” Nandlall told the court.
“So that ground of constitutionality is not being alleged, but that Section 22 by conferring what is interpreted as a law-making power upon GECOM violates the doctrine of separation of powers and that is flatly rejected by the authorities,” he added.

Nandlall further highlighted that there is absolutely no evidence contained in the petition to suggest that the results produced by the recount process is different from that of the original results derived from the March 2, 2020 General and Regional Elections.
On January 18, the Chief Justice struck-out the elections petition, 99 of 2020, filed by Monica Thomas and Brennan Nurse, who argued that the elections were unlawfully conducted and/or that the results, were affected or might have been affected by unlawful acts or omissions.
She had described the submissions from lawyers representing the petitioners in said matter as “unmeritorious”, and had ruled that the petition is invalid on the basis that the second named respondent, David Granger, was served the petition after the prescribed time for service had expired — a procedural impropriety.
On February 24, Attorney-at-Law, Roysdale Forde, S.C. representing the petitioners, Monica Thomas and Brennan Nurse, moved to the Court of Appeal to have the Chief Justice’s decision set aside. That appeal is scheduled for Case Management on April 12.
Subsequent to listening to the arguments purported by the various counsels representing the parties to the petition, Chief Justice (ag) Roxane George, S.C. disclosed that ruling on the matter is scheduled for April 26, 2020.

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