Caribbean Court of Justice (CCJ) Judge Jacob Wit has urged greater swiftness on the part of local courts in addressing election petitions.
He said there seems to be an eagerness to “punish” for a few days delay in service in one petition, while two years on from the elections, the other of the two petitions challenging the March 2nd, 2020 polls “is still somewhere.”
Meanwhile, another of the judges of the Regional court—Justice Peter Jamadar—has emphasised the need for the country’s laws governing those matters to be simple for every citizen to understand, while stating that it plays a significant role in aiding democracy.
Attorney General (AG) Anil Nandlall SC has committed to so ensuring.
The Justices made their respective observations on Tuesday during the hearing of an appeal from Guyana on whether the decision of a petition not determined on its merits could be appealed to Guyana’s Court of Appeal.
The challenge before the Trinidad-based court of last resort for Guyana stems from the election petition filed by the main Opposition APNU+AFC coalition to the March 2, 2020 general elections.
It was thrown out by acting Chief Justice Roxane George SC, who found that presidential candidate of the APNU+AFC, David Granger was not served on time. Petitioners Monica Thomas and Brennan Nurse subsequently appealed to the local appellate court.
Vice President Bharrat Jagdeo and the AG have, however, challenged the decision of the local appeal court giving itself jurisdiction to hear the appeal. Their contention before the CCJ is that having not been determined on its merits, the petition cannot be appealed.
Nandlall, in his address to the court, had noted a tendency of election petitions dragging on for years in the local courts even as new elections are held. He added that in most instances, also, the petitions are not taken to finality.
The AG had said that in Guyana, of all the election petitions ever filed, only one petition has ever been decided on its merits.’
Not a very effective method
Drawing consternation from Justice Wit, who sought to clarify the statistic, the Judge remarked, “That doesn’t sound a very effective method of challenging elections then.”
Nandlall, when asked about the status of the second of the two petitions filed by the Opposition, told Justice Wit he could not recall the current status of that matter.
The Judge then remarked, “So, looking at it…from a distance…the system is very eager to punish…let’s say a few days delay in service because that is what we’re talking about…but then we are now two years after that election…that one petition that was allowed to continue is still somewhere.”
Justice Wit said that Guyana was not the only place where such matters proceed slowly, noting that from reading the cases “they take an awful long time.”
“So what about this urgency to deal with these things quickly?” Justice Wit then enquired from Nandlall, who had underscored the requirement in election laws for disputes to be settled with swift dispatch for peace, stability and the continuity of government.
“In practice there doesn’t seem to be that urgency,” Justice Wit observed.
“Your Honour, you are possibly in a far better place that I am to speak to the alacrity with which the judiciary must work,” the AG then offered in response. “We are prepared every day to go to court, every night to go to court,” he added.
Nandlall then suggested to Justice Wit that being the highest court for Guyana, the CCJ “should help us to move the process along,” while stating that such was beyond the realm of the Executive.
Meanwhile, following a remark during the arguments from Senior Counsel Douglas Mendes, who is representing Jagdeo, that “Election petitions are not for the faint of heart and not for the amateur,” Justice Jamadar cautioned that while this might be so, the law provides that any elector can mount a challenge to elections and so there is need for the law to be stripped of ambiguity and technicality.
Justice Jamadar said the law ought not to be expressed in such a manner that requires “some sort of sophisticated professional experience.” The system to challenge elections, he said, should be made “clear, transparent and accessible for the ordinary person.”
The Judge then went on to express the hope that the Attorney General would consider his proposition since he (Justice Jamadar) said he really thinks that “it aids democracy if what has to be done is laid out clearly, simply, in plain English,” thus making it simple and easy for anyone to understand the procedure needed for mounting an election challenge.
“When we say on one hand, elections are the life-blood of democracy and then we make it so opaque, I don’t think that is an aid to democracy,” the Judge opined.
The Judge’s observations had been in reference to Article 163(3) of Guyana’s Constitution which had dominated the debate on Tuesday on the right to appeal.
In commending the task to Attorney General Nandlall of ensuring simpler legislation on the issue, Justice Jamadar said he hoped that to make democracy “more transparent in Guyana that some form of rules or acts will be laid out so that the ordinary person knows what has to be done and make it easy.”
“It helps democracy Attorney General. I won’t say more,” Justice Jamadar then concluded.
Nandlall gave his commitment to so ensure, stating that “it will be a matter which will be considered at the appropriate time.”
The second petition to which Justice Wit had referred in his discourse with the AG is currently before the Guyana Court of Appeal awaiting a date when it will be called for the first time.
It had been appealed there since last year after Chief Justice George on April 26 threw it out on a finding that the Recount Order and Section 22 of the election laws act did not contravene the Constitution as had been argued by counsel for the petitioners.
The petitioners—Claudette Thorne and Heston Bostwick—subsequently appealed the CJ’s ruling to the Court of Appeal.
Thorne and Bostwick want the Court to determine, among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and, in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
