ON Monday, the A Partnership for National Unity (APNU) faced another defeat as the Court of Appeal (CoA) dismissed their appeal related to Election Petition 88 of 2020, and upheld 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 High Court had rejected this petition two years ago, citing serious non-compliance with the Constitution of Guyana, electoral laws, and other infringements.

Acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards, along with Justices Dawn Gregory and Rishi Persaud unanimously upheld the decision of Chief Justice (ag) Roxane George, S.C.

Using the foundational principle of democratic societies where elections are won or lost in the ballot box and not in the judicial system to bolster his argument, Justice Persaud said:

“A crucial pillar of any democratic society is one in which supreme power is vested in the people, and exercised by them, directly or indirectly, through a system of representation, usually including periodically held free and fair elections.”

Similarly, Justice Gregory explained that there was no breach, violation or non-compliance by GECOM of the Constitution or the laws governing elections such as to make the elections a sham or a travesty as claimed by the petitioners.

“I agreed with the Chief Justice that in its implementation, GECOM did not act unlawfully,” she affirmed, while maintaining that the petition failed to establish grounds to vitiate the elections.

Justice Cummings-Edwards highlighted that GECOM was expected to operate within the confines of its power, particularly during a time when the Parliament was in recess.

“I find no breach of the separation of powers doctrine,” she added.

The Appellate Court found that GECOM’s power to issue subsidiary legislation in the form of Order 60 was exercised within the acceptable legal parameters, and that there was no trespass upon the province of Parliament.

Regarding costs, Senior Counsel Roysdale Forde suggested that each party bear its own costs due to the significant public importance and constitutional value of the issues.

He noted that the case affected elections and the need for clarity, especially with another contested elections approaching.

Attorney-at-Law Douglas Mendes, representing the General Secretary of the People’s Progressive Party (PPP), argued that the applicants should be ordered to pay costs.

He cited the clear terms in which the matter was dealt with, and the additional costs incurred by his client.

In the end, the Court awarded costs in the sum of $150,000 in favour of the four respondents who participated by way of submissions.

BACKGROUND

The applicants, Claudette Thorne and Heston Bostwick, filed the appeal 18 months after the Chief Justice had handed down her decision.

Forde, in representing the petitioners, argued that the Chief Justice erred in law and misdirected herself in applying the doctrine of strict compliance.

Another claim was that she failed to consider the objective of the petition, based on the content of the Affidavit of Service.

In this matter, petitioners Thorne and 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 that 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 disregarding the declarations of poll submitted by the returning officers.

The Chief Justice had dismissed the petition due to serious non-compliance with the Constitution of Guyana, and electoral laws related to GECOM’s conduct of the elections. The Court of Appeal concurred, stating that the petitioners failed to present evidence supporting claims of constitutional and electoral law violations during the elections.

Attorney-General and Minister of Legal Affairs Anil Nandlall, S.C., in supporting the dismissal, had pointed out the absence of material facts, and the petitions’ failure to lay a foundation for challenging the elections’ legitimacy.

This decision followed the Caribbean Court of Justice (CCJ)’s dismissal of Election Petition 99 of 2020, filed by Monica Thomas and Brennan Nurse in October 2022.

The CCJ ruled that the Court of Appeal lacked jurisdiction to hear and determine the appeal challenging the dismissal of that petition.

The original petition, dismissed in January 2021 by the Chief Justice, faced issues of late service, non-service, or improper service.