Second elections petition tossed out
Chief Justice (ag) Roxane George, C.C.H, S.C
Chief Justice (ag) Roxane George, C.C.H, S.C

–no breach of, or non-compliance by GECOM with Constitution or law governing elections, Chief Justice rules

IN accordance with the ruling by Chief Justice (ag) Roxane George, C.C.H, S.C. that there was no breach of the Constitution by the Guyana Elections Commission (GECOM) to make the elections “a sham or a travesty as claimed by the petitioners”, the last standing Election Petition, 88 of 2020, was tossed out.

In a thorough, comprehensive and well-reasoned judgement, the Chief Justice (ag) sitting in the High Court of the Supreme Court of Judicature on Monday dismissed the Elections Petition which sought to vitiate the March 2, 2020 General and Regional Elections, not based on evidence, but hinged on a legal argument pertaining to the constitutionality of the election laws.
In this matter, petitioners Claudette Thorne and Heston Bostwick contended that the elections were unlawfully conducted, and/or that the result of the elections, if found to be lawfully conducted, were affected by unlawful acts or omissions on the part of GECOM.

They relied upon the grounds that Section 22 of the Election Laws (Amendment) Act 2000 is unconstitutional, and by extension Order 60 of 2020, which authorised the elections recount process, is invalid, null, void, and of no effect.

Further, they contended that the Returning Officers’ Electoral District Declarations could not have been set aside, and GECOM’s actions were unlawful and encroached upon the High Court’s jurisdiction under Article 163 of the Constitution, which gives the court exclusive jurisdiction to determine questions as to the validity of the elections.

They noted that the powers and functions of GECOM is vested by the Constitution, the Representation of the People Act (RPA), and the Election Laws (Amendment) Act (ELAA), and argued that GECOM acted in excess of its jurisdiction (ultra vires), and breached the Constitution when it issued and acted upon Order 60 pursuant to Section 22 of the ELAA.

They also submitted that Parliament, by enacting Section 22 of the ELAA, violated the legal doctrine of the separation of powers, and abdicated its legislative function to GECOM by virtue of a mere Order to amend the provisions of the RPA, and thereby disregard the declarations of poll submitted by the returning officers.

STRUCK DOWN
In citing a plethora of legal authorities, the Chief Justice struck down these arguments, ruling that Parliament did not abdicate its law-making responsibility to GECOM when it enacted Section 22 of the ELAA; that Order 60 is not ultra vires of the Constitution or Section 22, and that neither Section 22 or Order 60 usurped the High Court’s jurisdiction.

In accordance with Articles 62 and 162, GECOM’s functions are to conduct elections pursuant to the Constitution, and any Act of Parliament. Article 162 (1) (b) stipulates that GECOM can issue instructions, and take such actions as necessary or expedient to ensure impartiality, fairness and compliance with the Constitution, and any Act of Parliament, namely, the RPA and ELAA.
The Chief Justice explained that Article 162 (1) (b) gives GECOM wide scope to discharge its functions, as detailed in the said article, so that it could ensure and deliver a lawful, fair and credible elections, as required in a democratic society.

In those regards, she explained, Article 162 (1) (b) gives GECOM responsibility to resolve any difficulties that arise during the elections process; and that therefore, Section 22 of the ELAA was enacted accordingly with Article 162.

“When one reads the ELAA, it addresses a number of issues that had arisen regarding elections,” Justice George said. “By enacting Section 22,” she reasoned, “Parliament clearly envisaged a responsible Commission, which, with the benefit of operational institutions, would best be able to address the needful during the elections process. This, to my mind, must obviously include addressing difficulties and challenges that may arise.”

In acknowledging that there were indeed difficulties in the elections process, which was recorded in a series of legal actions during the elections process, the Chief Justice concluded that Section 22 is an implementing provision to operationalise Article 162, so that GECOM could exercise its function in the management of the election process. Therefore, it is constitutional.
She also disagreed with the petitioners that Section 22 offends Articles 65 and 170 of the Constitution, which provide for the legislative power of Parliament and the mode of enacting legislation, respectively.

“Article 65 (1) provides for Parliament to make laws for the peace, order and good governance of Guyana; the ELAA, which includes Section 22, is an enactment that so provides,” she reasoned.
“Article 170 states that subject to Article 164… the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly, and assented to by the President. The ELAA was passed by the National Assembly and assented to, therefore, prima facie, there is no contravention of this article,” she added.
Further, the Chief Justice highlighted that there is nothing in Articles 65 and 170 which restricts or prevents Parliament from enacting laws to delegate its legislative function; therefore, Parliament did not abdicate its law-making responsibility to GECOM when it enacted Section 22.

“I uphold that the power, as set out in Section 22, is clearly and sufficiently circumscribed, so as not to run afoul of the doctrine of separation of powers,” Justice George held.
“My analysis of the authorities cited has led me to the ineluctable conclusion that Section 22 is not ultra vires of the Constitution, and I so hold there has been no violation of the doctrine of separation of powers,” she added.

She reasoned that Section 22 of the ELAA is meant as an aid to the elections process, so as to permit a determination of a result, and it does not, in any manner or form, permit a usurpation of the High Court’s jurisdiction, or Article 163.

“Section 22,” she said, “provides the parameters for its efficacy, and the power granted therein is not arbitrary; it includes sufficient mechanism to establish that Parliament did not surrender or abdicate it powers. Thus, I hold that there was a lawful delegation of power, as provided for by Section 22, so that GECOM could independently and properly control the elections process to completion.”

In addressing the Constitutionality of Order 60, she explained that similarly as Section 22 of the ELAA, it allows for the implementation of Article 162. Order 60, in turn, operationalises Section 22 by providing the mechanism for GECOM to address the difficulties that has obviously arisen as regards the declaration of the results.

OBLIGATION
“GECOM, as part of its core functions pursuant to Article 62 and 162,” the Chief Justice explained, “had an obligation to complete the election process, and, therefore, had concomitant obligation duty and responsibility to address such difficulties to achieve this. Order 60 was an aid in the process, permitting a determination of the results it is itself limited by its provisions.
“Order 60 was meant to facilitate GECOM’s mandate to declare the final results of the elections.

The order, therefore, merely modified the RPA, and provided an alternative mechanism for arriving at the results of the elections, given the difficulties which arose. And GECOM considered it necessary to overcome in completing the election process, which it was mandated to do.

“Order 60 does not confer any additional powers on GECOM, but simply alters the procedure to arrive at the results of the election. While the procedure was different, the aim and objective remained the same: To count the ballots and determine the votes cast,” the Chief Justice held, adding:

“I consider and hold that Order 60, and for that matter its enabling provision, Section 22, did not, and have not usurped the jurisdiction of the High Court, under Article 163, to determine whether an election was lawfully conducted.”

In making her ruling, the Chief Justice noted that in order to exercise general direction and supervision, and have administrative conduct of the elections, GECOM had to ensure the lawful and proper implementation of the RPA, and Section 22 of the ElAA.

“This was done lawfully by GECOM, via Order 60 enabling it to issue instructions and take action as appeared necessary and expedient to resolve the controversy, as part of its responsibilities to complete the elections process by delivering the results,” she ruled.

“There was no breach or violation or non-compliance by GECOM of the Constitution or the law governing elections such as to make the elections a sham or a travesty as claimed by the petitioners,” she added.

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