The Guyana Court of Appeal by majority decision has issued an order that the words “more votes are cast” as per Article 177 (2) (b) of the Constitution of Guyana should be interpreted to mean “more valid votes are cast” in keeping with the definition of valid votes as outlined in Order 60 of 2020 (Recount Order) but the ruling appears superfluous as GECOM has already decided the valid votes.
This Order is however stayed for three days following the granting of an application made by attorney Kashir Khan on behalf of The Citizenship Initia-tive and Change Guyana. No other Order was granted by the court to Eslyn David who had been seeking an order against the Chief Election Officer (CEO) presenting his final report among others.
The interpreted Article now provides that “a Presidential candidate shall be deemed to have been elected as President and shall be so declared by the Chairman of the Elections Commission— if more valid votes are cast in favour of the list in which he is designated as Presi-dential candidate than in favour of any other list.
It is now up to the Guy-ana Elections Commission (GECOM) to interpret the definition of “valid” as used in the regulation it crafted. GECOM has already concluded that valid votes are those which have been tallied during the national recount exercise.
While Justice of Appeal Rishi Persaud ruled that David’s application was misconceived and dismissed it for want of Jurisdiction both Justice of Appeal Dawn Gregory who led the panel and High Court Justice Brassington Reynolds decided that based on the wording of Article 177(4) there exists a limited jurisdiction for the Court to decide the validity of an election of a President based either on the qualification of the candidate or the interpretation of the Constitution.
In delivering her decision, Justice Gregory stressed that the issue at the root of the case is the scope and effect of the Recount Order in relation to 177 (2) (b) or specifically the interpretation of the words “more votes cast” as used in the article. She stressed that the precise question was whether Order 60 had enough force to influence the interpretation of these words before pronouncing that it did.
Justice Reynolds whose ruling aligned with Justice Gregory declared that the recount order created a new election regime which is hybrid in nature.
“The words “determining a credible count” inserted into Order 60 were not mere surfacing considering that they were twice deployed… The reasonable inference to be drawn from this formulation of words is that the Commis-sion having defined it as an objective of a recount must have intended that those words have effect,” he stated.
Legal analysts have suggested that sections of Order 60 are unconstitutional since they require the conduct of exercises that are properly within the province of the High Court.
Justice Reynolds also stressed that GECOM does have a responsibility to determine the final credible count by a quantitative and qualitative examination of the reports and summaries submitted to the Commission in compliance with Order 60.
Pronouncements
These pronouncements effectively granted the applicant Eslyn David the first two of six relief measures she was seeking. Reynold’s ruling declared that GECOM failed to determine a final credible count and or the credibility of the result of the elections and interpreted Article 177 (2).
He however declined to grant any of the other measures requested as he maintained the Court’s jurisdiction under Article 177 (4) was too narrow to allow for injunctive relief.
The other orders sought included an order restraining the CEO from complying with the Chairperson’s direction and prohibiting GECOM from determining the final credible count and or the credibility of the elections. Additionally, David wants the court to grant orders restraining the CEO from submitting the elections report to GECOM, which she is contending contains votes which are not credible.
Justice Gregory, in turn granted only the second request. She noted that since the Chief Election Officer, Keith Lowenfield’s report was never submitted and Lowenfield himself never appeared in Court to offer a response she could not rule on the validity of his report.
“All this Court can determine is the interpretation of 177(2). I make no other orders. The Court has no jurisdiction to determine if the CEO’s report is valid or not,” Justice Gregory stressed.
On the issue of jurisdiction, Justice Reynolds cited various articles of the Constitution and held that Article 177 (4) grants the Appeal Court an authority to hear an election matter distinct from the authority granted to the High Court via Article 163.
He declared that the Constitution establishes separate jurisdictions for the election of a President and members of the National Assembly. He stressed that these two elections are reflected in two different sections and further maintained that the National Assembly Validity of Elections Act does not define elections and therefore must conform to the definition within the Constitution which distinguishes the elections of two parties.
Justice Persaud meanwhile agreed with the arguments on jurisdiction submitted by a majority of the respondents. He held that Article 177 (4) has not been activated because Guyana’s parliament never developed regulations governing its implementation as provided for in Article 177(5) and further in the absence of an “elected president” the provision of Article 177(4) could not be invoked stressing that a person being “deemed” President is not the same as being elected as an election is not complete until so declared by GECOM.
Additionally Justice Persaud declared that even in the case of a completed election or an activated provision the article applies only to matters related to the qualification of the President.
His final ruling was that an examination of the credibility of an elections is exclusive to an election court and consistent with the general scheme of Guyanese legislation is to be determined after the conclusion of said elections.
“The sanctity of the elections court is well established,” he maintained.
Justices Gregory and Reynolds disagreed with these arguments. According to Gregory the use of the word “or” in the provision is disjunctive and creates two distinct limbs of jurisdiction with one limb relating to the interpretation of the Constitution.
She further pronounced that there is no clash of jurisdiction with that of the Election Court at Article 163.
“The jurisdiction of Article 177(4) is carefully carved out and distinct from that granted in Article 163,” Justice Gregory maintained.
Justice Reynolds in turn agreed that the use of the word “may” in Article 177(5) showed that it was not a precondition of the application of 177(4).
