The most recent Court challenge in the March 2nd 2020 elections sees attorneys for the applicant arguing that Section 22 of the Election Laws (Amendment) Act (ELA) is unconstitutional since it grants the Guyana Elections Commission the power to make and amend laws.
They argue that since the Section is unconstitutional the recount order drafted and implemented under its authority is also unconstitutional as are the recount results from the elections.
“The delegation of power to GECOM to amend laws is an abdication by Parliament of its law-making powers with respect to the making of laws and policy pertaining to the conduct of elections,” the five listed attorneys argue on behalf of their client, Misenga Jones.
The constitutionality of Section 22 was one of five issues identified by Chief Justice Roxane George-Wiltshire as pivotal to the case. The matter comes up for hearing this afternoon.
Another issue she said is whether the declarations made by the returning officers of the 10 electoral districts can stand or would have to be set aside.
Justice George-Wiltshire said, too, that also to be examined is whether any of the declarations and orders being sought by the applicant were already determined by the courts in previous litigation.
According to the 15-page submission composed by Senior Counsel John Jeremie, Roysdale Forde, Mayo Robertson, Keith Scotland and Rondell Keller the Constitution reposes the power to make, amend and repeal laws solely in the legislative arm, the National Assembly.
Section 22 of the Election Laws Act, they argue, purports to delegate Parlia-ment’s law-making power to GECOM by the making of a mere order but legislation should not become law unless it has been duly passed in the Assembly and assented to in accordance with the Constitution.
The section specifically allows that if any difficulty arises in connection with the application of the ELA, the Representation of the People Act or the National Registration Act…the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.
It goes on to note at sub-section (2) that any order under subsection (1) shall be subject to negative resolution of the National Assembly, only if Parliament is not dissolved and not otherwise, and shall not be made after the expiry of three months from the date of election.
Order 60 operationalized this section in conjunction with Article 162 of the Constitution to amend the procedure used in the Representation of the People Act for a recount.
In their submission the applicant cites four examples of Indian Case Law to support their argument including the judgment in the case of Kunwar Raghuraj Partap Singh v Chief Elections Commissioner made on 13 February 1998. According to the application the similarities between the powers of the Election Commissions in Guyana and India make this case noteworthy.
Vested
In Kunwar Raghuraj Partap Singh, the Supreme Court of India stated that: The Commission is vested with very wide powers. The exercise of the powers, however, is not without check…[it] has to be exercised with legal circumspection…[as it] is complementary and supplemental.
“It cannot be exercised contrary to the provisions of law, nor should it violate existing laws. The exercise of power may not be such that an authority becomes imperium in imperio [an empire within an empire]” the ruling concludes.
The attorneys argue that GECOM being empowered with the wide, unfettered and unregulated discretion to make laws is ultra vires the Constitution and contrary to the rule of law.
Section 22 tramples upon the maxim delegatus non potest delegare (one to whom power is delegated cannot himself further delegate that power),” they stress noting that Article 160 of the Constitution vests Parliament with the exclusive authority to enact legislation with respect to the electoral system.
“This power is a non-delegable power and consequently Parliament cannot delegate such a power to the Elections Commission or any other entity,” they stress.
Further reference is made to Article 170 of Guyana’s Constitution which details how legislation is made. Particular mention is made of Articles 170(1) and (6) which say that subject to the provisions of article 164, the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly and assented to by the President…a Bill shall not become law unless it has been duly passed and assented to in accordance with this Constitution.
“Parliament (and by extension GECOM) has no power to ignore these conditions of law-making that are imposed by the Constitution which itself regulates Parliament’s power to make law,” they conclude.
A second argument presented is that even if Section 22 is interpreted to be constitutional it cannot be invoked for “retrospective” impact which was the case with Order 60.
“It must only be limited to future difficulties and not difficulties which would have arisen in relation to completed acts and transactions and especially where those acts and transactions by Officers under the Election Law Act would have given rise to accrued rights. Section 22 must only act prospectively and not retrospectively,” they contend.
Dispute resolution
The National Recount is described as a “dispute resolution process” which addressed not procedural issues but substantive ones which should have been brought to an Elections Court via Article 163.
This argument is used to bolster the position that the 10 declarations set aside by GECOM Chair Claudette Singh cannot be discarded as they are an “accrued right.”
“Section 22 is not curative or corrective in nature and cannot consequently confer power on GECOM to correct, rectify, set aside or vary any act or transaction undertaken and completed in the elections process. To give the meaning attributed to section 22 by GECOM would be to confer on GECOM the power to correct acts or omissions which may have occurred during the elections process by way of Order 60. This process intrudes on the exclusive jurisdiction of the High Court under Article 163 of the Constitution to adjudicate on acts or omissions which would have taken place during the elections process,” they claim.
They further argue that Order 60 did not allow for new Declarations to be made by a Statutory Officer as does the RPA.
“Section 84 of the RPA is clear that the ROs are required to make their respective declarations. Further, section 96 mandates that the CEO is to consider these declarations in the preparation of his report under that section. Order 60 cannot bring about a new legal regime for the basis of the declaration of the votes,” they conclude.
They also extended their arguments to the actual conduct of the recount process noting that Order 60 cannot create a new legal regime which establishes criteria and standards for the determination of validity of votes which is inconsistent with the Representation of the People Act.
According to the submission Order 60 permitted a process to be used which established the validity of votes not only by persons not authorized to so do and after the validity of votes were already determined by the Returning Officers but on criteria and standards inconsistent with the Representation of the People Act.
This assertion and several other were adopted by Chief Election Officer Keith Lowenfield.
In a submission made on the CEO’s behalf, Senior Counsel Neil Boston, Saevion David-Longe and Samuel Glasgow stated that the valid votes stated on the Certificates of Recount are not the same as determined by the Presiding Officers (PO) due to “various directions given during the Elections Commission’s supervised National Recount.”
These directions they argue were inconsistent with procedures set out in RPA and the manual for POs and polling day officials.
The Commission, they stressed, accepted ballots with smudges and erasures as long as the voter intention appeared to be clear and overall applied this “new rule” inconsistently based on the arguments and officials involved.
The submission includes an extensive appendix with actual ballot papers and a table showing the statistical impact of the Commission’s actions.
According to Lowenfield 572 ballots previously rejected were deemed valid while 319 which were considered valid on March 2 were rejected during the recount. The total ballots impacted was 891 less than 1% of the total ballots cast.
