The Full Court yesterday morning discharged injunctions previously granted to APNU+AFC candidate Ulita Grace Moore, thereby paving the way for the Guyana Elections Commission (GECOM) to commence a recount of the votes cast at the March 2nd polls.
Delivering the judgment of the Full Court, acting Chief Justice Roxane George-Wiltshire SC, who along with Justice Nareshwar Harnanan had stayed a ruling made by Justice Holder giving himself jurisdiction to hear Moore’s matter for judicial review, said that that matter ought to have been brought by way of an elections petition.
Jagdeo had challenged Justice Holder’s decision to hear Moore’s case, arguing that the judge had no jurisdiction to enter into an inquiry into GECOM’s decisions and contending that it could only have been brought by an elections petition.
Following Justice Holder’s ruling late last week, Jagdeo, through his battery of attorneys, including Anil Nandlall and Trinidadian Senior Counsel Douglas Mendes, appealed, and at the same time asked the judge to stay his ruling pending the outcome of their appeal to the Full Court.
Justice Holder had not granted a stay.
It was not until Monday that the Full Court granted a temporary stay, pending the outcome of its hearing of the matter yesterday when it also ruled that it had jurisdiction to hear the appeal mounted by Jagdeo.
The ruling of the Chief Justice and Justice Harnanan detailed that Moore’s matter, which was before Justice Holder, could not be heard by judicial review.
Justice George-Wiltshire said that unlike the first case mounted by Reeaz Hollader seeking judicial review, which she had jurisdiction to hear, Moore’s case did not fall into the same category.
The judge distinguished Hollader’s case, which she said essentially questioned the act/omission of an individual which according to law, is subject to judicial review.
On the other hand, however, the Chief Justice said that Moore’s case sought to challenge the act/omission of the entire Guyana Elections Commission (GECOM).
She explained in the ruling that because GECOM was an autonomous body, the court could not interfere with decisions it may make with regards to its mandate of having full authority over Guyana’s electoral process.
She said that while it is no doubt prudent that GECOM discharges its functions in a fair and transparent manner, the court could not interfere with its deliberations and decisions.
The judge said that matters such as that brought by Moore would have to be mounted by an elections petition, which the law specifically provides for and not in an interlocutory handling by judicial review.
In the circumstances, the court declared that it would allow Jagdeo’s appeal and that the injunctions previously granted by Justice Holder would be discharged, resulting in Moore’s matter effectively being dismissed.
Jagdeo’s legal team had argued that Section 140 of the Representation of the People Act prohibits the High Court from inquiring into any decision or acts by the Commission other than by way of an elections petition.
The effect of the Full Court’s ruling essentially now places in the hands of the Elections Commission whether a full recount of all ballots will be done.
Chairperson of the Commission retired Justice Claudette Singh had previously given to the Chief Justice an undertaking that a recount would be done. It is now to be seen what action the Commission will take.
Moore’s attorney, Mayo Robertson, signaled his intention to appeal the ruling to the Court of Appeal.
He had asked the Full Court to stay its ruling, pending the hearing and determination of his appeal, but this was refused.
The court endorsed Mendes’ contention that the appeal had no real merit or prospect of success, which he said is an essential prerequisite. Robertson disagreed, stating that it may well be that the appellate court finds different. His position was, however, not accepted by the judges.
‘No jurisdiction’
Meanwhile, in a separate ruling yesterday afternoon, Justice Franklyn Holder dismissed Opposition Leader Bharrat Jagdeo’s challenge to the controversial March 13th declaration of results for Region Four (Electoral District Four) made by Returning Officer Clairmont Mingo, saying he had no jurisdiction to hear the matter.
Justice Holder said that in accordance with Article 163 of the Constitution, Jagdeo’s challenge to the March 13th declaration ought to have been brought by an elections petition and not by judicial review.
It was Mendes’ contention that as the Chief Justice had previously ruled, the RO’s actions were subject to review and so the court ought to have heard his client’s case.
Having laid down his ruling, however, Justice Holder said that he was not of the opinion that the law contemplated two legal attacks where a challenge which ought to be brought by an elections petition can also be interrogated by judicial review.
Following the ruling, Mendes enquired from the judge whether he would be dismissing the case but was told by Justice Holder that having declined jurisdiction he would be making no further pronouncements on the case.
Mendes, however, raised the issue that unless the judge dismissed the matter, it would remain on file.
Senior Counsel Neil Boston, who represents Mingo and Chief Election Officer (CEO) Keith Lowenfield, who are respondents in the matter, said that having declined jurisdiction, the court did not need to do anything further.
After seeking the guidance of other attorneys at the bar, however, the judge said that the matter stood dismissed.
Speaking to reporters following the hearing, Boston said that as it currently stands given Justice Holder’s ruling declining jurisdiction of Jagdeo’s challenge, it is the APNU+AFC incumbent which has won the elections. The Mingo declaration had controversially put APNU+AFC ahead but would still have had to be approved by GECOM before a final result was declared.
Meanwhile, Nandlall, in his comments to the media, described Justice Holder’s decision declining jurisdiction to hear his client’s matter as a very “strange” one, stating that the very judge in what he (Nandlall) said was an identical judicial review proceeding filed by Moore, granted injunctions and later gave himself jurisdiction to hear that case.
He said that he could not understand how the judge “suddenly lost jurisdiction.”
The lawyer, however, said that Justice Holder’s decision does not affect the earlier Full Court ruling, which has essentially lifted the injunctions which had halted a recount, and noting that GECOM is free to proceed with that process.
Asked whether he would appeal Justice Holder’s ruling declining jurisdiction to hear Jagdeo’s case, Nandlall said that once the recount is done, there will be no need to appeal that decision.
He emphasised the commitment given by the GECOM Chair to a recount.
He said that it is not his team’s intention to keep the matter in the court when the solution to the issues lies outside the court in the hands of GECOM through a recount
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 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 process is fair and impartial as provided for in Article 162 (1) (B) of the Constitution.
Last Friday Justice Holder rejected a request by Jagdeo to have the Statements of Poll (SOPs) for Region Four disclosed to the court. The judge said at the time that the proper forum would be an elections petition.
The opposition PPP/C’s position has been that Mingo did not, as required by law, use the SOPs to tabulate the results he eventually declared.
Nandlall had contended that the SOPs ought to be disclosed in the interest of transparency so that they could be thoroughly scrutinised against the figures Mingo is purported to have declared as being an accurate representation of the votes cast for District Four.
Justice Holder on Friday, however, said that in accordance with the National Assembly Validity of Elections Act, all questions relating to the elections and the validity of same, ought to be dealt with by an elections petition. The judge had said that the crux of Jagdeo’s application calls for an enquiry into the validity of the elections itself.
Justice Singh, who is also a respondent in the cases, in an affidavit dated March 20th, had given an undertaking following a ruling delivered by Chief Justice Roxane George-Wiltshire that should there be discrepancies in the SOPs called by Mingo with those held by political parties, then such discrepancies would be noted at the end of the process if they could not be addressed then, and she would endeavour to facilitate a recount at the level of the Commission.
