Following legal arguments yesterday on the fate of the second petition challenging the results of the March 2nd 2020 general elections, the Court of Appeal has fixed November 1st for a report on the status of the Chief Justice’s written ruling in the matter
Following a hearing on what was described as a delay of 17 months in hearing the appeal of Chief Justice Roxane George’s oral ruling throwing out the petition, the Chancellor of the Judiciary, Yonette Cummings-Edwards said that the appellants would not be shut out by the court.
She said that such matters “should indeed be heard in a timely manner,” but added that whether the delay lies at the feet of counsel or the judicial system, is an issue that would have to be investigated.
Notwithstanding that, she made it clear that in the interest of justice, the appellants will not be turned away by the Court.
On that note, the Court has set November 1st for reports on the state of the Chief Justice’s written ruling, and the status of the full record of appeal.
The Chancellor said that on that report date, a case management conference (CMC) will be held at which dates will be set for the filing of submissions and a fixture announced for the hearing of the substantive appeal.
The matter is being heard by the Chancellor, along with Justices of Appeal Dawn Gregory and Rishi Persaud.
Presenting his motion to the Court of Appeal yesterday morning for an urgent hearing, counsel for the appellants, Roysdale Forde SC, laid the blame squarely at the feet of the judiciary, which he said was responsible for that “institutional/systemic failure.”
Against this background, he argued that his clients—Claudette Thorne and Heston Bostwick—in whose name that petition was filed, have “suffered a substantial prejudice,” owing to the “substantial delay.”
Senior Counsel Douglas Mendes who represents Vice President Bharrat Jagdeo—one of the Respondents in the action—argued, however, that Forde’s aim has been to “blame everyone else,” but the appellants who he says are the ones responsible for ensuring that their appeal move forward.
His call on that ground, was for the appellate court to strike out the motion seeking the urgent hearing and the appeal itself.
Strongly contending, however, that there was no specific rule placing an obligation on his clients to ensure that the matter is prosecuted, and therefore no failure of compliance which could be said to be had on their part, Forde said the motion ought to be granted.
He argued that more than a year after the conclusion of the matter before the High Court, acting Chief Justice (CJ) George SC is still to render her written judgment, which ought to form part of the record of appeal.
According to him, despite strenuous efforts some 18 months after the April 2021 ruling, he has still not succeeded in getting a copy of the written ruling and has asked the assistance of the appellate court in this regard.
He said that despite timelines by which written judgments are to be rendered, the CJ’s is still not available and that the record of appeal from the High Court for the hearing before the Court of Appeal is yet to be assembled.
Institutional/systemic failure
Forde submitted that “it is the fault of the Chief Justice,” that the judgment after all this time, is still not available; while adding that the obligation is on the judiciary to ensure the preparation of the record of appeal.
Advancing the “substantial prejudice” which he says his clients have suffered because of the “substantial delay,” Forde said “it lies at the foot of the judicial system,” for what he called the “institutional/systemic failure.”
Petitioners to blame
As had been done by Forde to advance his arguments, Mendes also referenced a plethora of case law authorities, with which he sought to convince the Court, that it is the appellants who are to be blamed for the delay.
Mendes began by acknowledging that the nature of the case is one which, given its public importance and national interest, ought to be heard with “swift dispatch.”
He, however, contended that it is the litigants who are to be the main driver of their case. He said that even though Forde himself knows that his client’s matter is the type to be dispensed with swiftly, he failed to file a motion for urgent hearing at the same time he filed their appeal back in May of last year.
To so do in August of this year, more than a year after, Mendes argued that Forde’s application ought not to have been countenanced by the Court and that by extension the appeal should also be struck out.
He said, too, that while Forde made much ado about the CJ’s written judgment not being available, the transcript of her oral ruling has always been available and said he could not see why the CJ who has numerous other cases, was being blamed for the delay.
Mendes’ position was that if the appellants did not zealously pursue the prosecution of their case, then it would naturally fall to the “bottom of the pile.”
Against this background he asked for Forde’s motion to be dismissed.
In response, Forde advanced that the oral judgment is not a substitute for the written ruling which he noted the Chief Justice had said was not the entirety of her ruling which the written version would have.
On this point he also underscored the CJ’s commitment to make the written judgment available shortly after she would have ruled.
Forde said that Mendes’ arguments were “fallacious” as there was no rule which placed an obligation on his client’s to prosecute the matter; while contending that his opponent was only trying to squirm around the issue of delay.
Background
Thorne and Bostwick are adamant that the Elections of March 2nd, 2020, were unlawfully held.
Their petition which was dismissed, sought to invalidate the national recount of ballots cast following the contentious announcement of those polls. Among other things, Chief Justice George ruled that Section 22 of the Elections Law (Amendment) Act 2000 and Order 60 made thereunder by which the recount was facilitated, were not in violation of the Constitution.
It was the contention of the 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.
Dissatisfied with the ruling, they lodged an appeal before the Court of Appeal.
The Opposition had filed two petitions challenging the results. In January of last year, Justice George dismissed the first of those petitions after finding that the Party’s presidential candidate David Granger was not served on time.
Petitioners Monica Thomas and Brennan Nurse subsequently appealed to the local appellate court which ruled that it had jurisdiction to hear the challenge.
Vice President Jagdeo and the Attorney General have, however, challenged the decision of the local appeal court giving itself jurisdiction to hear the appeal.
Their contention before the Caribbean Court of Justice (CCJ) is that having not been determined on its merits, the petition cannot be appealed.
That matter is currently awaiting ruling before the Trinidad-based CCJ.
One of the Justices of the superior final appellate court for Guyana had remarked at the hearing of that matter, that there seemed to be an eagerness to “punish” for a few days delay in service in one petition, while noting that two years on from the elections, the other of the two petitions “is still somewhere.”
The petition to which the Judge made reference is the one filed by Thorne and Bostwick.
