Following an application by Opposition Leader Bharrat Jagdeo, the Full Court yesterday stayed the proceedings initiated by APNU+AFC candidate Ulita Grace Moore to halt a recount of the votes cast at the March 2 polls and will today rule whether it has the jurisdiction to hear his appeal.
Should acting Chief Justice Roxane George-Wiltshire and Justice Naresh Harnanan, who presided in the Full Court, decide to hear Jagdeo’s appeal, then it will temporarily set aside Justice Franklyn Holder’s decision to hear Moore’s case.
Jagdeo, who had asked to be named a respondent after Moore filed an application for judicial review that named the Guyana Elections Commission (GECOM) Chairperson Justice (retired) Claudette Singh and Chief Election Officer (CEO) Keith Lowenfield as respondents, filed his appeal last Friday afternoon, hours after Justice Holder ruled that the High Court had jurisdiction to hear Moore’s matter.
Through Senior Counsel Douglas Mendes and attorney Anil Nandlall, Jagdeo is arguing that Justice Holder cannot hear the matter because the High Court has no jurisdiction to enter into an inquiry into GECOM’s decisions.
It is argued that Section 140 of the Representation of the People’s prohibits the High Court from inquiring into any decision or acts by the Commission other than by way of an elections petition. Nandlall yesterday said that the provision was put there because Parliament wants GECOM to complete the electoral process and that it conferred upon GECOM a panoply of powers expressed in 161 (2) of the Constitution as well as Sections 19 and 22 of the Election Laws Amendment Act.
Justice George-Wiltshire and Justice Harnanan yesterday heard arguments from Mendes and Professor Francis Alexis SC, former Attor-ney General of Grenada, and Dr. Keith Scotland, of Trinidad, who are representing Moore, via video link.
Addressing a grant of a stay to the proceedings initiated before Justice Holder, Mendes pointed out that if the court were unable to give its ruling on its jurisdiction to hear the appeal before 1 pm yesterday (when Justice Holder was scheduled to hear the matter) then a stay should be granted. He added that if the stay were not granted then what they hoped to prevent from happening through the appeal would have already taken place.
On the issue of the court’s jurisdiction to hear the matter, Mendes said that it was clear on the evidence provided by the applicant that GECOM had taken a decision to have a recount done and in doing so it was in agreement with CARICOM’s suggestion that a recount be done.
Moore, in her application for judicial review, had contended that GECOM could not order a recount based on an Aide Memoire signed by President David Granger and Jagdeo. President Granger has said he had contacted CARICOM’s Chair, Prime Minister of Barbados Mia Mottley, and agreed for a recount to be done following controversy over the tabulation of the votes cast for Region Four, which opposition parties as well as international and many local observers say was not done in a transparent and credible manner. An independent high-level team from CARICOM had then traveled to Guyana to supervise the recount, however this was aborted after Moore filed her application and was granted an injunction against the recount.
In her submissions to Justice Holder by way of an affidavit filed by her attorney Kim Kyte-Thomas, GECOM’s Chair has indicated that the Commission can take whatever action it sees fit to ensure the electoral pro-cess is fair and impartial as provided for in Article 162 (1) (B) of the Constitution.
Mendes yesterday said the question is if the High Court can entertain an inquiry into whether the decision by the Commis-sion to have a recount was lawful.
In his submission, Dr. Scotland stated that the grounds listed in Jagdeo’s appeal are those that should be considered by way of an elections petition. He pointed out that the issues raised are mere speculation because Justice Holder could ultimately rule that Moore’s application to bar the recount is denied. He said that even though the Full Court may have jurisdiction to hear the matter this should only be done in exceptional circumstances and in his opinion nothing submitted by the applicant amounted to such. Further, the lawyer submitted that Justice Holder in his decision indicated that the matter was a live one.
For his part, Professor Alexis was of the opinion that not every matter regarding elections fits into Article 162 of the Consti-tution. Therefore, he said that an elections petition cannot address the issues raised by his client, Moore, as it has to do with the carrying out of the function of the Commission based on a report submitted by its CEO.
Justice George-Wiltshire asked Dr. Alexis how he factored in Section 22 of the Election Laws Amendment Act in the context of Article 162 of the Constitution.
“So 162 gives the broad power to the Elections Commission to have admi-nistrative conduct…of the elections and then Section 22 permits them to address any difficulties that may arise,” the judge noted.
She pointed out that in Moore’s affidavit she spoke to a problem with the Region Four count and she questioned whether that could be a difficulty within the context of Section 22, which the Commission can consider as part of its wider powers under Article 162 and should that be so whether it can then be captured under 140.
Alexis responded in the negative as no order has been consummated under Section 22 and there is no such order before the court to consider. He said while an order was drafted it is not before the court as being consummated.
But Mendes rebutted that Section 22 is in place as Moore is asking the court to say that the decision by GECOM to order a recount was invalid. He pointed out that it was the injunction that was granted in Moore’s favour that brought the recount to a halt. “We are dealing with the performance under Section 22,” Mendes contended.
However, Alexis maintained that there is nothing before the court that brings Section 22 into play.
Justice George-Wiltshire and Justice Harnanan then stayed the matter before Justice Holder and will today at 11am rule on whether they have jurisdiction to hear the filed appeal.
Also representing Moore are Senior Counsel Roysdale Forde and attorney Mayo Robertson, while Kyte-Thomas represented Singh and Senior Counsel Neil Boston represented Lowenfield. Attorney Timothy Jonas represented other respondents in the matter.
