Noting its commitment to bringing a timely conclusion to the impasse over Guyana’s March 2 elections that has been brought before it, the Caribbean Court of Justice (CCJ) has designated all of next Wednesday for dealing with the matter.
Pointing out, however, that the issue of whether the court even has jurisdiction to hear the case will be dealt with first, President of the Trinidad-based court Justice Adrian Saunders yesterday said that if the court so rules, then it will go on to deal with the substantive matter. If not, however, the matter will come to an end at that point, as there will be no need for going any further.
At a case management conference yesterday afternoon, the court set timelines for the filing of submissions and responses which have to be concluded ahead of Wednesday’s 9am start.
The incumbent A Partnership for National Unity +Alliance for Change (APNU+AFC) and another contesting party, the United Republican Party (URP), have been granted requests to appear amicus and were added as interveners.
They will be allowed to make written and oral submissions to the court.
Lawyers representing the various parties to the proceedings have been given no more than 45 minutes and no less than 30 minutes in which to make their submissions.
The intended appeal before the court has been laid by opposition PPP General Secretary Bharrat Jagdeo and PPP/C presidential candidate Irfaan Ali who are challenging the decision of the local Court of Appeal to pronounce on the constitutional meaning of “votes cast” at the March 2 polls.
The ruling was based on an application initiated on behalf of Eslyn David, who sought various orders against the Guyana Elections Commission (GECOM), including one restraining Chief Election Officer (CEO) Keith Lowenfield from submitting his final report, which the Chairperson of the Commission had instructed him to prepare in order to make a declaration of the final results from the March 2 polls.
In a majority decision, the local Court of Appeal found that under Article 177 (4) of the Constitution, it had the jurisdiction to pronounce on David’s application, which sought to restrict the final declaration of the results to only votes deemed valid by Lowenfield.
The court found that the words “more votes cast” should be interpreted to mean “more valid votes are cast in relation to the elections held on 2nd March 2020.”
Raised at yesterday’s case management conference by Douglas Mendes SC, attorney for Jagdeo and Ali, was the concern that Lowenfield had submitted to the Elections Commission, a report disregarding some 115,000, votes which shows a win for the incumbent APNU+AFC.
This, Mendes pointed out, was even in the face of a three-day stay which the Court of Appeal had placed on its ruling.
Against this background, Mendes asked the court to instruct Lowenfield to withdraw the report.
David’s attorney, Senior Counsel John Jeremie, however, pointed out that the court could not so dictate and that in any event there was no breach of the CCJ’s order maintaining the status quo of no declaration being made before the court has dispensed with the matter.
Williams said that there was some amount of confusion in the court below regarding when Lowenfield prepared the report for submission and the time the Court of Appeal made its ruling and subsequent orders. He then went on to state that in any event Lowenfield’s action predated the order made by the CCJ on Tuesday which is still being honoured.
Substantive
Since yesterday had been set only for case management and not to deal with any substantive matter as Justice Saunders had made clear, Justice Winston Anderson said that with the court not knowing what transpired at the Court of Appeal, only the case management should be focused on.
He pointed out, too, that the court was concerned that its own order had not been breached.
Justice Saunders said that the CCJ could not undo what the CEO would have already done but added that the case management forum was not the arena to deal with that, while indicating to Mendes that the concerns could form part of his submission for presentation to the court next Wednesday.
Jeremie drew to the court’s attention the numerous daily commentaries being made on the elections deadlock by many, including prominent figures.
Against this background he underscored the scathing nature of some remarks directed towards judges of the lower court for the way they have ruled and expressed concern over the matter now being before the CCJ and the fact that commentaries are still being made on a daily basis.
Justice Saunders, however, assured Jeremie that the court was concerned only with what is before it—the submissions of counsel and the law substantiating those submissions and absolutely nothing outside of the court.
Noticeably absent from yesterday’s hearing were Lowenfield or his lawyer as well as GECOM and its counsel.
The special leave being sought by the intended appellants to appeal, along with Williams’ contention that the court has no jurisdiction to hear the matter as well as the substantive matter have all been consolidated into one.
Justice Saunders said that the court will first deal with the preliminary issue of its jurisdiction as that would determine whether it can or cannot go on to deal with anything further.
The judge said that four issues arise from the case—whether the Court of Appeal had jurisdiction to hear the matter; if it lacked jurisdiction what consequence this would have on the CCJ; or if it rightly had jurisdiction what consequence this would have on the CCJ; and, fourthly, if it rightly had jurisdiction and exceeded that jurisdiction, what consequence it would have on the CCJ.
Noting the importance of the matter being dispensed with in a timely manner, Justice Saunders urged the attorneys to adhere to the timelines while emphasisng that the court’s order that the status quo be maintained also be adhered to.
`Shall be final’
Williams, in his affidavit before the CCJ, is contending that pursuant to Article 177 (4), any decision made by the Court of Appeal thereunder “shall be final.”
According to him, the article empowers the Court of Appeal to adjudicate matters of the type described in Article 177 to the exclusion of all other courts, including the CCJ.
That article states that the Court of Appeal “shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends upon the qualification of any person for election or the interpretation of the Constitution; and any decision of that Court under this paragraph shall be final.”
By a majority decision on Monday, the Court of Appeal ruled that the words “more votes cast” as stated in Article 177 (2) (b) should be interpreted to mean “more valid votes” cast.
GECOM Chairperson Justice Claudette Singh (ret’d) had instructed Lowenfield last week to prepare a report using a tabulation of votes from the national recount of ballots cast at the March 2nd polls. The recount showed a win for the PPP/C over the incumbent APNU+AFC.
An initial report prepared by Lowenfield immediately following the recount, however, had acknowledged the votes tabulated by the recount but also said that given the alleged anomalies uncovered during the process, the results did not reflect a fair and credible election.
As a result, David wanted the Court of Appeal to declare that GECOM had failed to determine a final credible count and or the credibility of the result of the elections and on this ground she sought relief from the court.
She submitted that in accordance with the recount order and pursuant to Section 96 (1) of the Representation of the People Act (RPA), the CEO was required to determine the “total number of “valid votes” and in accordance with Article 177 (2) (b) of the Constitution where there is the reference to ‘more votes cast,” it must necessarily mean “more valid votes” cast.
The intended appellants are contending among other things that the Guyana Court of Appeal erred in law and was plainly wrong in holding that it had jurisdiction to hear and determine David’s challenge even though a president had not yet been elected and the issue of the validity thereof had accordingly not yet arisen.
Noting that David’s challenge seeking to prevent the CEO from complying with the Chairperson’s direction was framed as an application pursuant to Article 177(4), Jagdeo and Ali are arguing that the reliefs sought fall outside the scope and intent of that article.
The tabulation of the recounted ballots, which concluded on June 8th, saw the opposition PPP/C leading the incumbent APNU+AFC by 15,416 votes, with the PPP/C securing 233,336 votes compared with 217,920 secured by APNU+AFC.
Before the recount, two highly controversial declarations made by Clairmont Mingo, Returning Officer for Electoral District Four, showed the coalition poised to win. Local and international observers had, however, discredited Mingo’s declaration for lack of transparency. The dispute over the legality of his declarations, which were based on fictitious numbers, led to the recount, which was observed by CARICOM.
In a new report submitted on Tuesday and which purports a win for the APNU+AFC Lowenfield discarded 115,787 votes, while saying he guided by the Appeal Court ruling in preparing the document.
