More than a month after losing a petition which sought to invalidate the national recount of ballots cast following the contentious announcement of last year’s General Elections results, the opposition APNU+AFC has filed an appeal.
They are contending among other things that Chief Justice (ag) Roxane George-Wiltshire SC erred in law in ruling that Section 22 of the Elections Law (Amendment) Act 2000 and Order 60 made thereunder were not in violation of the Constitution.
They also complain that the judge ought not to have ordered the Statements of Poll (SoPs) and Statements of Recount (SoRs) generated from the Elections to be lodged with the Registrar of the Supreme Court.
Back in April, Chief Justice George dismissed the petition, ruling that both Section 22 of the Election Laws Amendment Act (ELAA), and Order 60 which facilitated the recount, were well within the ambit of the Constitution, and therefore lawful.
She had made it clear, also, that the Guyana Elections Commission (GECOM) was empowered to conduct the recount.
Appellants Claudette Thorne and Heston Bostwick in whose name the petition had been filed, are arguing that the judge also erred in ruling that Order 60 had not contravened the Constitution by virtue of a conferment of powers under Article 162 (1) (b) and Section 22.
Through their attorney Senior Counsel Roysdale Forde, Thorne and Bostwick are contending, too, that the Chief Justice erred in her finding that they had not produced evidence in their petition, and that GECOM was empowered to set aside the declarations of the 10 Returning Officers (ROs).
Justice George-Wiltshire had detailed in her ruling that the petitioners had presented not a single piece of evidence to substantiate purported irregularities they sought to advance.
It was the contention of petitioners, that Order 60 was “bad” in law because it was brought into force by an unlawful piece of legislation—Section 22 of the ELAA.
They wanted the court to determine among other things, questions regarding whether the elections had been lawfully conducted or whether the results had been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly had been lawfully allocated.
Finding that the Elections Commission did not encroach upon the jurisdiction of the High Court under Article 163 of the Constitution, the appellants say, is yet another error the judge committed in arriving at her ruling.
In their appeal filed on Tuesday, the appellants said that Article 163 confers on the court an exclusive jurisdiction to determine questions as to the validity of Elections and further that she erred in failing to find that Parliament violated Articles 65 and 170 of the Constitution, the doctrine of Separation of Powers, and abdicated its inherent legislative functions to the Elections Commission by permitting it, through Order 60, to amend or modify the provisions of the Representation of the People Act.
Among a plethora of other, what they describe as errors, the appellants are contending that the Chief Justice erred in not finding that Section 22 was not restricted in its application to future difficulties and not difficulties which would have arisen in relation to completed acts and transactions, particularly in relation to completed acts which had given rise to accrued rights.
Dismissing claims made by Trinidadian Senior Counsel John Jeremie—who led the legal team representing the petitioners, the Chief Justice had said in her ruling that by enacting Section 22, Parliament in no way relinquished its powers to GECOM.
She had noted that in fact, having envisioned the possibility of difficulties such as those with which the March 2nd, 2020 polls were confronted, the framers of the Constitution reposed in GECOM, the power to address and resolve such issues for expediency.
It had been the argument of the petitioners that the matters with which the Commission had been confronted, ought to have been dealt with by way of an election petition.
The chief justice would go on to hold, however, that the recount in no way usurped the exclusive jurisdiction vested in the High Court to hear challenges brought by way of an elections petition.
During the unprecedented five-month process which finally culminated with an official declaration of results on August 2nd last year, GECOM had invoked the legislative provision in Section 22 and drafted Order 60, which outlined a procedure to be used for the recount.
The results of the national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.
The Opposition had filed two petitions challenging the results. Back in January, however, Justice George-Wiltshire dismissed the other petition after finding that the Party’s presidential candidate David Granger was not served on time.
Respondents had in the matters asked the Chief Justice to order that the SoPs and SoRs be lodged with the Registrar of the Supreme Court for safekeeping.
In a ruling earlier this week, the judge ordered that the statutory documents be handed over to the prosecution before the Magistrate’s Court where several GECOM staff—including its Chief Election Officer—Keith Lowenfield are facing charges for fraud related to those polls.
