We must ask – on what grounds and by what form of executive fiat does the Chief Elections Officer determine that he should invalidate 1 vote, far less over 115 000 votes when the votes were already certified as valid by officers of the Guyana Elections Commission in the presence of the political parties.
Mia Mottley, Outgoing Chair of CARICOM
In last week’s column, we referred to the appeal by the Opposition Leader Bharrat Jagdeo and presidential candidate Dr. Irfaan Ali to the Caribbean Court of Justice (CCJ) against the decision of the Guyana Court of Appeal that: (i) it has jurisdiction to hear the matter brought before it by one Ms. David; and (ii) “votes cast” in the context of Article 177(2)(b) of the Constitution should be interpreted to mean “valid votes cast”. That article reads as follows:
… if more votes are cast in favour of the list in which a person is designated as presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as president and shall be so declared by the chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.
Section 8 of the Caribbean Court of Justice Act, Cap 3:07 of the Laws of Guyana, provides for an appeal to the CCJ with the special leave of the Court from decisions of the Court of Appeal arising from any civil or criminal matter. Having reviewed this section, the CCJ granted an interim order restraining the Elections Commission and its officers from taking any steps to issue a declaration of the results of the elections until the Court issues its final orders.
Substantive issue under appeal
The substantive issue on which the CCJ is asked to render a decision is whether Guyana Court of Appeal had the jurisdiction to hear the matter brought before it by Ms. David, considering the requirement of Article 174(4) that provides for the latter to 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’.
Before examining the substantive issue, the CCJ first has to decide whether it does indeed have jurisdiction to hear the matter, notwithstanding Section 8 of the CCJ Act. This is in the light of Article 174(4) which goes on to state that any decision rendered by the Court of Appeal regarding the validity of the election of a President, shall be final.
Appellants’ arguments
Last Wednesday, the CCJ began its hearing of the appeal. The appellants’ lawyers argued that since a declaration is yet to be made as to who is the President, it is simply not possible for there to be a challenge to that yet undetermined person’s qualification under Article 174(4). The Court of Appeal would have therefore erred in considering that it had jurisdiction to hear the matter brought by Ms. David. The lawyers 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, the main contention in David’s case relates to GECOM determining the credibility of the elections, which is not catered for by Article 174(4).
The lawyers also pointed out that in interpreting the provision under the Article 174(4), one must bear in mind Article 163 that vests exclusive jurisdiction in the High Court to determine the validity of an election and specifically to resolve any dispute that arose concerning breaches that may have been made under the Representation of the People Act (ROPA). They urged caution in deciding on the exclusive jurisdiction of the Court of Appeal vis-à-vis that of the High Court.
Lawyers for the smaller political parties urged the CCJ to not only determine that it has jurisdiction to hear the appeal but also to set aside the Court of Appeal’s decision and to make consequential orders on what constitutes “valid votes”. In this regard, they referred to Section 96 of the ROPA which itemizes situations where votes cast can be rendered invalid. These include (i) the absence of the official stamp; (ii) uncertainty as to which list of candidates the vote is for; (iii) voting for more than one candidate; or (iv) disclosure of the identity of the elector.
Respondent’s arguments
The main thrust of the arguments presented by the respondent’s lawyers is that the CCJ has no jurisdiction to hear the appeal against the Court of Appeal ruling since Article 174(4) provides for the latter to be the country’s final court on the matter. They contend that the Constitution is the supreme law; Article 174(4) has been in place since 1966; and the CCJ Act, which came into effect in 2004, cannot override it.
Judges’ comments
Justice Wit stated that if the Chief Election Officer (CEO) was correct in his interpretation of the Court of Appeal’s decision when he submitted his report that invalidated some 115,000 ballots cast, it would change the whole system under the ROPA which has a clear system of the counting of votes. He commented that it would appear that the CEO believes that there is no difference between the election of a President and election of members to the National Assembly. Upon enquiry whether this was so, the appellant’s lawyers suggested that since CEO mistakenly believed that the court ruling gave him the authority to determine what constitutes a valid vote, the CCJ would have no hesitation in ruling that his report to GECOM is null and void.
In response to an enquiry from one of the judges on the status of GECOM with regard to a request to investigate certain anomalies in the election, the appellants’ lawyers pointed out that the Commission does not have judicial powers. They referred to the statement by the Commission that any investigation had to be dealt with in an elections court.
Justice Saunders enquired whether it is not wrong for a matter that properly falls under Article 63 and capable of being appealed right up to the CCJ, is taken to the Court of Appeal, thereby resulting in a usurpation of jurisdiction. To this, the respondent’s lawyers maintained that the CCJ has no jurisdiction to determine whether the Court of Appeal acted correctly. In response to a further enquiry, the lawyers acknowledged that no case could be found where the validity of the election of a government official is challenged before that official was actually elected. Justice Saunders then posed the question of how can one begin to assess the qualification of someone whose identity is not known, to which the response was that the issue relates the validity of the qualification of president and not a particular individual.
Justice Jamadar remarked that deeming over 100,000 votes invalid not only has an effect on the composition of the National Assembly but also makes an ‘absolute mockery of the electoral system’ to which the response was that the Court of Appeal did not declare any votes valid but merely gave an interpretation of Article 177(2)(b).
Justice Saunders considered that if no one knows who the individual is whose election is being challenged, then it must mean that Section 177(4) is not being applied to a person who has been invalidly elected but to a process or system or a machinery. In this regard, he stated that the High Court has exclusive jurisdiction to interrogate or question that machinery. Justice Saunders then posed the question: ‘How can a Constitution provide exclusive jurisdiction to two different courts to interrogate the same process, the same system, the same machinery?’
Justice Saunders also enquired whether it is correct for the Constitution and the election law to be amended by subsidiary legislation. This is in reference to the gazetted Order (60/2020). To this, the appellants’ lawyers remarked that it will amend the Constitution!
The CCJ is expected to give its ruling on Wednesday.
