After listening to more than six hours of submissions, the Caribbean Court of Justice (CCJ) yesterday set next Wednesday at 3pm to rule on whether it has jurisdiction to hear the appeal taken before it by PPP General Secretary Bharrat Jagdeo and PPP/C presidential candidate Irfaan Ali, challenging the decision of the local Court of Appeal to pronounce on the constitutional meaning of “votes cast” at the March 2 polls.
This means that Guyanese have at least another week before a declaration on the March 2 elections can be made and a new president sworn in.
President of the CCJ, Justice Adrian Saunders, at the end of the proceedings, which started at 9am and ended at just around 4:30pm, said that the court appreciates need for expeditiousness on their part even as they attempt to assimilate all of the submissions presented.
Justice Saunders was joined on the virtual bench by Justices Jacob Wit, Maureen Rajnauth-Lee, Denys Barrow and Peter Jamadar.
The first issue to be determined is whether the CCJ has jurisdiction to hear the matter as Article 177 (4) of the Guyana Constitution states that the Court of Appeal in Guyana is the final court as it relates to the provisions under this Article.
This became a controversial issue after Jagdeo and Ali challenged 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 of the March 2 polls.
The Court of Appeal on July 22 ruled that under Article 177 (4) the interpretation of the words “more votes are cast” catered for in Article 177 (2) (b) should mean “more valid votes are cast.” In that majority decision the 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.
Since that ruling Lowenfield has submitted a report in which he controversially removed over 115,000 votes, using the Court of Appeal ruling as the basis for the exclusion.
As the submissions were being made, various members of the bench underscored the fact that Article 177 (4) dealt with the election of a president and not with the system or machinery of the entire election process. They questioned who was named as being elected as president in David’s application and whose qualification was being queried. But the lawyers for David, Joseph Harmon, and Attorney-General Basil Williams, kept zeroing on the issue that the CCJ had no jurisdiction to hear the matter as provided for under the Constitution of Guyana as the Court of Appeal is the country’s final court on the matter.
Senior Counsel Ralph Ramkarran who along with attorney-at-law Timothy Jonas, appeared for Mark France, Daniel Josh Kanhai and Lenox Shuman, asked the court to not only determine jurisdiction and set aside the Court of Appeal’s decision and ruling it null and void, but also to make consequential orders such as stating what are the valid votes of the elections. He pointed out that the case is about the elections and the counting of votes and Section 96 points to the recount results being the valid results.
He appealed to the court to take a position on what the valid votes of the elections are, and not seek to “kick the election can down the road” because if they do not take control of the “can”, then the issue will be back in the very court shortly for it to once again pronounce on Guyana’s elections.
Ramkarran, a former Speaker of the National Assembly, said that the case has all the evidence before the court as to the disputation and as such the court merely has to take the material and pronounce on the elections results and bring this matter to a close once and for all. With nearly four months since the ballots were cast, Ramkarran expressed the opinion that the “torment” for Guyanese needs to end.
It was at this point in Ramkarran’s submission that Justice Wit questioned whether Lowenfield may have rightly or wrongly interpreted the decision of the Court of Appeal when he submitted his latest report, which removed some 115,000 ballots cast. The CCJ judge opined that if Lowenfield made the right decision then this would change the whole system under the Representation of the People Act which has a clear system of the counting of votes. From Lowenfield’s submission, the judge said, it appears as if he believes that there is no difference between the election of a president, which is catered for under Article 177 (4), and election of members to the National Assembly.
“Is it the right interpretation or is it is his own fantasy?” Justice Wit questioned as it relates to Lowenfield.
In response, Ramkarran said he would not venture an interpretation because it is not clear as to what is the Court of Appeal’s interpretation of final and valid votes. He pointed out that Lowenfield believes the court’s decision gives him leave and licence to determine what the term “valid votes” means and to take away 115,000 votes.
But he argued that when the CEO seizes this window of interpretation and uses it as a window of opportunity to make such a submission, the court should have no hesitation in ruling that the letter he sent to the Commission is null and void.
Determine credibility
Meanwhile, Trinidadian Senior Counsel Douglas Mendes representing Ali and Jagdeo, who had filed the appeal, yesterday argued that because the question concerns the validity of an election, the applicant in the Court of Appeal should have pointed to something that somebody might have done wrong that could make the election invalid. However, when one looks at David’s case, the relief that she sought in the affidavit has a common theme which is that GECOM was supposed to determine the credibility of the elections.
He pointed out that no relief was sought and it was not a question of her asking the court to invalidate an elections but rather seeking to have the court answer certain questions.
According to Mendes, Article 91 says that the President shall be elected by the people in the manner directed by Article 177 (1) which states that on the list of candidates for an election, a person must be identified as a presidential candidate. When an elector votes in such an election they are voting for the list and the vote is also deemed as one for the presidential candidate of that list. Article 177 (2) gives guidance as to how the president would be determined – the person who wins is the person who is on the list that has the most votes. That candidate shall be deemed to be president and declared by the GECOM, following a report to the commission by the Chief Election Officer.
Mendes is of the opinion that in order for one to invoke the jurisdiction of the Court of Appeal they must raise a question as to the validity of an election of a president.
“When you interpret the words, you have to be challenging the election of someone, whose election is invalid,” he stressed, adding that David commenced but did not name any presidential candidate in her motion. Therefore, Ali, the PPP/C’s presidential candidate, had to be included and Mendes said that it is quite telling that David did not name anyone whose election was in jeopardy.
He contended that the jurisdiction under Article 177 (4) can only be invoked after an election has occurred and for him the Court of Appeal ought not to have heard David’s case.
The senior counsel further emphasised that the Court of Appeal only has jurisdiction to determine validity of a presidential candidate and it must depend upon one’s qualification or the interpretation of a question. He pointed out that in interpreting the provision under the Article, one must bear in mind that Article 163 vests exclusive jurisdiction in the High Court of Guyana to determine the validity of an election which is to resolve any dispute that arose concerning breaches that may have been made under the Representation of the People Act (RoPA) by GECOM.
“We have to be careful in carving out what is the exclusive jurisdiction of the Court of Appeal and that of the High Court,” Mendes cautioned.
He said that it is important to note that the jurisdiction of the Court of Appeal is limited to validity which depends on the interpretation of the constitution and to prove that the constitution has been breached. He pointed out that APNU/AFC’s candidate Harmon had written GECOM requesting that it investigate what he considered to be anomalies but the commission had responded that this was for an election court to decide.
At this point Justice Jamadar asked whether it was correct that GECOM in saying it did not have jurisdiction, also indicated who it thought had that jurisdiction.
Mendes responded in the affirmative.
Justice Wit wanted to know whether GECOM fell within the ambit of the executive, legislative or judicial arm of the government and Mendes responded that it falls within the executive arm and does not have judicial powers, and as such it would have been a violation if they had determined that they had the power to investigate the issues raised by Harmon.
On the question as to whether the finality clause under Article 177 (4) precludes the CCJ from hearing the matter, Mendes said that there is need to look at what the decision was, as if it is catered for under the Article then the CCJ does not have jurisdiction. However, he stressed the decision made by the Court of Appeal does not fall under Article 177 (4) as it deals with the validity and that depends on the interpretation of the constitution.
He argued that the CCJ is Guyana’s apex court that determines what the constitution provides.
Asked by Justice Saunders as to what relief he is seeking, Mendes responded that he is asking for the appeal to be allowed and for David’s motion to be dismissed as the Court of Appeal has no jurisdiction to make any of the pronouncements.
Justice Wit wanted to know the interpretation of valid votes as he pointed out that as while there are two elections, one for the president and the other for members of parliament, they are like Siamese twins, and one cannot go without the other.
Trigger
David’s attorney, Senior Counsel John Jeremie, contended that the Court of Appeal in making its decision was exercising without doubt, its powers under Article 177 (4) of the Constitution. He said while the trigger under the Article is the election of a president, the court still has authority to make the determination that it did.
Making what he termed a “silly proposition,” Justice Wit questioned whether in the same way the Court of Appeal ruled that more votes means more valid votes, if they had said more votes means more invalid votes if the CCJ still would have had no jurisdiction to trespass on the ruling in light of the constitutional provision.
Jeremie maintained that the CCJ would still have no jurisdiction.
Justice Saunders joined in with what he described as the “nub of the matter” and queried whether if a matter which properly falls under Section 163 and which is capable of being appealed right up to the CCJ, is improperly taken to the Court of Appeal, if the lawyer sees nothing wrong with the Court of Appeal usurping the jurisdiction and then there is nothing anybody can do about it.
Jeremie in response noted that in principle, the court has no jurisdiction to decide whether upon the material which is placed before it, another superior court granted exclusive and final jurisdiction in a matter. He was at pains to argue that the CCJ has no jurisdiction to determine whether that superior court was wrong.
Saunders asked the lawyer if he was able to find any case where there was a question of the validity of some government official before that official was actually elected, while noting that the case is actually unprecedented.
Jeremie responded in the negative.
Queen’s Counsel Justin Simon, who represented Attorney-General Williams, in his submission said that the question that needed to be answered is whether the Court of Appeal had jurisdiction to entertain the motion filed by David. He pointed out that all will agree that the CCJ is not an institution established by the Constitution of Guyana, which is the supreme law of the country. The CCJ, he said, was established by an act of parliament in 2004, which is incorporated in the legislation.
Simon submitted that it is was the Constitution, Article 177 (4), which provides that the Court of Appeal shall have exclusive jurisdiction and any decision made by the court under this Article is final. He stressed that that section of the Constitution makes it very clear that the decisions are final and cannot and ought not to be appealed to any higher court.
According to Simon, the Appeal Court in its majority ruling interpreted “more votes” as meaning “more valid votes”, but the court did not make any coercive order. He said that court relied on the broad meaning of the words which were used in Section 96 of the Representation of the People Act and what was sought was the interpretation of a constitutional provision, and the Court of Appeal is given, in no uncertain terms, the exclusive jurisdiction to hear the motion which was filed. A decision on that matter would be final, according to Simon.
Justice Saunders noted that Article 177 (4) speaks about the validity of the elections of the president and he questioned who is the person mentioned in David’s motion, but according to Simon it does not speak about a particularly individual “but an election of a President”. Justice Saunders then asked “Who is that person?” and Simon responded that it was whomever was going to be eventually elected.
Justice Saunders further pressed Simon as to whether the Court of Appeal was empowered to enquire into the validity of no one in particular. To this Simon responded in the affirmative, adding that the court is assisting the process of the elections of a particular person or someone who clearly will receive more votes than the other.
Not budging, Justice Saunders asked when it goes on to the qualification of a person whose identity is not known then how can one begin to assess the qualification for someone whose identity is not known,
Simon proffered that Justice Saunders’ question is not the right way to look at the issue as it deals with the validity of a president and not a particular individual.
Justice Saunders also asked whether David’s motion could have been filed the day before elections day and whether the Court of Appeal could embark on the enquiry and could have stayed the elections date until it completed the matter.
Simon responded that if it was necessary then so be it because if the court in the hypothetical case raised by Justice Saunders did not stay elections, then by the time it was completed, the process being questioned would have been completed.
Justice Saunders then wanted a case named where this preemptive challenge was done to the election of a government official and questioned whether it is not always done after the person is elected.
Simon accepted this fact but asked if that is the only way it should be done when there is no legislation that restricts when it can be done.
Supremacy
Representing Harmon was Senior Counsel Reginald Armour who said that supremacy of Guyana’s Constitution should be respected as it is from its womb the CCJ was created through the unanimous decision by Parliament in 2004.
He submitted that for the CCJ to set aside the decision, it must satisfy itself that the Court of Appeal was plainly wrong. He pointed out that the court did nothing more than interpret a constitutional provision and it properly stayed within its constitutional limit.
But Justice Jamadar stated that if at the end of the process the valid votes are different, because of the deeming sections in Article 177, the effect of what is being done now has an effect on the composition of the National Assembly. He pointed out that if over a 100,000 are being made invalid it would immediately have an effect of make-up of the National Assembly.
This he said would make an “absolute mockery of the electoral system” but Armour responded that the Court of Appeal did not declare any votes to be valid, it gave an interpretation.
Justice Saunders pointed out that the moment one decoupled Article 177 (4) from the election of a particular person as president and if the Article can be triggered when no one knows who is the individual whose elections is being challenged as being invalid, then it must mean that Section 177 is not being applied to a person who has been invalidly elected, but being applied to a process or system or a machinery.
“It is that same process or system or machinery that is necessary for membership of the National Assembly. The constitution says the High Court has exclusive jurisdiction to interrogate or question that machinery in relation to membership of the National Assembly. How can a Constitution provide exclusive jurisdiction to two different courts to interrogate the same process, the same system, the same machinery?” Justice Saunders questioned.
To this Armour responded that one has to construe the language of the constitution so that there is no inherent contradiction that the constitution intended. He said Article 177 (4) can only be construed to mean a particular person.
He questioned whether it is permissible for the CCJ to be led into error on a hypothesis and stressed that it has to limit itself to what is before it on appeal and that is, the order pronounced on valid votes. The CCJ, he said, must determine whether the Appeal Court was plainly wrong, or correct.
And he argued that it must not be forgotten that Article 177 has formed part of the legislative history of Guyana since its independence in 1966. The lawyer said that the present case is a difficult one and added that it is a truism that hard cases make bad law.
He cautioned the judges that they must be very slow and deliberate in their approach to the case and approach it within the constitution and the court’s treaty in relation to jurisdiction. He said the court can during its ruling, make the remark to ask its member states to amend their legislation.
Also appearing were attorney-at-law Kashir Khan for Shazaam Ally and Abedin Kindy Ali and Senior Counsel Fyard Hosein for The United Republican Party.
