Last Tuesday, the State of New Jersey filed a lawsuit against five oil and gas companies and a petroleum trade organization – ExxonMobil, Shell, Chevron, BP, ConocoPhillips and the American Petroleum Institute to which they are affiliated – alleging that they had known for decades about the harmful impact of fossil fuels on climate change but instead deceived the public about that link. According to the lawsuit, the defendants failed to warn the public about the role of fossil fuels in climate change and instead ‘launched public `relations campaigns to sow doubts about the existence, causes, and effects of climate change’.
The suit seeks civil penalties and damages, including for damage to natural resources such as wetlands, alleging that taxpayers will have to pay billions of dollars to protect communities from rising sea levels, deadlier storms, and other harmful effects and arguing that those costs should be paid by the defendants. A number of other states and cities have filed similar suits against oil and gas companies in recent years. See https://www.yahoo.com/news/nj-sues-oil-gas-firms-212248964.html.
Last Wednesday, the Caribbean Court of Justice (CCJ) issued its decision based on an appeal against the Guyana Court of Appeal ruling that it had jurisdiction to hear an appeal against the Chief Justice ruling on Election Petition 99/P.
Background to Election Petition 99/P
On 17 September 2020, lawyers for Monica Thomas and Brennan Nurse filed Election Petition 99/P, contending that the 2 March 2020 elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions. The petition is based on Article 163(1) of the Constitution that provides for the High Court to have exclusive jurisdiction to determine, among others, any question regarding the qualification of any person to be elected a member of the National Assembly; and whether an election has been lawfully conducted, or the results thereof have been or may have been affected by any unlawful act or omission. Accordingly, the petitioners requested the Court to determine the legality of the elections and of the results that led to the declaration and allocation of seats in the Assembly. They were also seeking an order to direct the GECOM Chair to declare former President David Granger the winner of the elections.
The petitioners were required to serve notice on the respondent not exceeding five days of the filing of the petition, as required by Section 8 of the National Assembly (Validity of Elections) Act and Rule 9(1) National Assembly (Validity of Elections) Rules. However, the respondent, former President David Granger, did not sign the related court documents until 25 September 2020 which was outside the five-day period.
Chief Justice ruling
On 18 January 2021, the Chief Justice threw out Election Petition 99/P because of a breach in the filing procedure for the case. She considered that non-adherence of service within the specific timeline would make the petition a non-starter, noting that Mr. Granger was a necessary party in the proceedings. She stated that there was compelling evidence to support the respondents’ argument that the former President was not served with the petition on time. The Chief Justice further noted that both the affidavit of service and the return of service documents were inconsistent, adding that while there was sufficient time within which the petitioners could have brought to the attention of the court what they described as a genuine mistake in recording the date of service, no effort was made to so do.
The Chief Justice rejected supplementary affidavits filed by the petitioners which sought to explain that the former President made a mistake when he signed the related court documents and that the petitioners had made a careless blunder. She, however, considered the explanations “preposterous” and “absurd.” The Chief Justice then declared petition 99/P a nullity and dismissed it.
Filing of appeal
Not satisfied with the Chief Justice ruling, the petitioners filed an appeal with the Guyana Court of Appeal. By Article 163(3) of the Constitution, a decision of the High Court is subject to appeal to the Guyana Court of Appeal in the following two circumstances: (1) an appeal from a decision of the judge granting or refusing leave to institute proceedings to determine questions stated in Article 163(1); and (2) an appeal from the determination of any of those questions or an order made as a result of such determination.
The petitioners contended that the Chief Justice erred in law and misdirected herself by misapplying the doctrine of strict compliance when she ruled the affidavit needed to be filed in a timely manner. The respondents, however, objected on the ground that the Court of Appeal lacked jurisdiction to hear the matter. They argued that Article 163 creates a regime for hearing election petitions and only provides two circumstances for appeal that we have cited in the preceding paragraph; and the Chief Justice’s decision did not fall into any of these two categories. It was only if the substantive petition had been heard that the matter could have been dealt with in the Court of Appeal. The respondents further argued that since the ruling was on procedural grounds only, it would therefore be an “interlocutory” ruling and not a “final” ruling on the petition itself and therefore could not be heard in the Court of Appeal.
Court of Appeal ruling
On 21 December 2021, the Court of Appeal by majority 2-1 decision ruled that it had jurisdiction to hear the appeal of the petition. Relying on Article 123 of the Constitution and Section 6(2) of the Court of Appeal Act, it considered that the exercise of the ordinary jurisdiction of the Court was not excluded by the special jurisdiction created by Article 163. Justices Cummings-Edwards and Gregory allowed the appeal, while Justice Rishi Persaud rendered the dissenting opinion.
In his ruling, Justice Persaud felt that the crux of the matter lay in the consideration of Article 163(3) and that the language of the article is clear and unambiguous. He stated that the Chief Justice did not hear the “question” or merits of the petition but rather dismissed it on the basis of late submission. Therefore, there was nothing to appeal.
Justice Cummings-Edwards, however, disagreed with Justice Persaud’s ruling. She stated that the Chief Justice sat in an elections court and considered the validity of the petition in relation to whether it could go on. She felt that the Chief Justice ruling was not simply on the procedural issue itself but on the petition as a whole and hence the ruling was a final one on the actual petition. Justice Cummings-Edwards concluded that the Court of Appeal had jurisdiction to entertain the appeal.
Justice Gregory also disagreed with Justice Persaud’s ruling and stated that because the ruling disposed of the entire substantive petition, a right of appeal could be allowed.
Filing of appeal to the CCJ
The intervention of the CCJ was then sought on the ground that because the petition had not been determined on its merits, the Guyana Court of Appeal has no jurisdiction to hear the matter.
CCJ ruling
Last Wednesday, the CCJ ruled that the Court of Appeal has no jurisdiction, and therefore cannot proceed to hear the election petition which the Chief Justice threw out for late service.
Justice Anderson delivered the judgment of the Court (with which Justice Wit and Justice Rajnauth-Lee agreed). In his disagreement with the Court of Appeal ruling, he considered that Article 163 of the Constitution, the National Assembly (Validity of Elections) Act and the National Assembly (Validity of Elections) Rules establish a comprehensive regime for challenges to an election. Election Petition 99P had to be determined in accordance with this framework, including whether there was compliance with the provisions for service of the petition. Justice Anderson emphasised that Article 163(3) limits the right to appeal of decisions of the High Court in election petitions to only two circumstances. The decision of the Chief Justice to strike out the petition on the basis that there was improper/late service did not fall into either of those circumstances, and an appeal was therefore not possible.
Justice Anderson further stated that jurisdiction could not be founded in Article 123 of the Constitution and Section 6 of the Court of Appeal Act since the special elections jurisdiction created by Article 163, the Act and Rules, must prevail over the general “civil law proceedings” jurisdiction contemplated by Article 123 and Section 6(2) of the Court of Appeal Act. He felt that the principle that general provisions of the Court of Appeal Act must yield to specific provisions in Article 163 is fundamental, and any tension between the two must be resolved in favour of the Constitution. Justice Anderson further stated that there may be a rare exception to the rule as to the Court of Appeal’s jurisdiction in order to maintain the integrity of the Constitution. However, there was no real suggestion from the respondents that the Chief Justice’s decision could support an argument that could possibly justify invocation of this exception.
In his own opinion, Justice Barrow agreed that the Court of Appeal lacked jurisdiction, arguing that while exclusive jurisdiction is given to determine election petitions, the Court’s general jurisdiction is not excluded from operating when the issue being determined is not a question under Article 163(1). In this case, the Chief Justice’s decision to dismiss the petition as a nullity was an ordinary question of law regarding service. He stated that Article 163(4) gave power to Parliament to create legislation with respect to the High Court’s practice and procedure in relation to the jurisdiction and powers conferred upon it. In crafting these legislative provisions, Parliament included Section 42 of the National Assembly (Validity of Elections) Act and Rule 21 of the National Assembly (Validity of Elections) Rules, which gave the Court the same powers, jurisdiction and authority in election petitions ‘as if the proceedings were an ordinary action’.
Justice Barrow considered that these provisions are relevant to answering the question of whether the decision to dismiss the petition is subject to the High Court’s general jurisdiction in the same way as an ordinary action. In any event, several indications made it clear that the Chief Justice’s order dismissing the petition was an order of a High Court judge made in chambers and for this type of order, no right of appeal is given to the Court of Appeal. The result was that the purported appeal against the dismissal by the Chief Justice of the petition as a nullity was, itself, a nullity because there was no right of appeal to the Court of Appeal, to begin with.
Also in a separate opinion, Justice Jamadar agreed with Justice Barrow’s decision. He observed that in Guyana, the deep basic structure and core constitutional values and principles to be found in Guyanese constitutionalism should guide a court when faced with choices as to multiple interpretations of statutory provisions. This is especially true in relation to provisions that implicate core constitutional values such as free and fair parliamentary elections. He suggested that the narrow jurisdictional issue in this appeal needs to be placed, contextualised, and understood through the lenses of democratic governance in Guyana, the role of the Courts, and the learning to be found from various constitutional authorities and authorities on the election petition jurisdiction.
The CCJ allowed the appeal and set aside the decision of the Court of Appeal, with each party bearing its own costs.
Finally, the CCJ had cause to issue a media release condemning the action of Guyana’s Attorney General for prematurely releasing, via his Facebook page, the CCJ judgment. It has been the practice of the Court to send advance copies of its judgment to all the lawyers involved in the case with the clear understanding that confidentiality is to be maintained until the Court renders its decision officially which is usually 24 hours later. The intent is to give the lawyers an opportunity not to re-litigate the dispute but to comment on any perceived errors in the draft. The advance copies are clearly marked “CONFIDENTIAL” and counsel are warned to treat with them in the strictest confidence pending the delivery of the judgment. According to the CCJ,
The premature, unauthorised disclosure of the result of the litigation is inexcusable. It betrays the confidence of the Court and, given the fact that it emanated from the Facebook account of the person holding the office of the Attorney General, it serves to bring the entire administration of justice into disrepute. The Caribbean Court of Justice prides itself on the measures it takes to enhance its integrity, impartiality and independence. The judges and staff of the Court will continue to work diligently, incessantly, to build the public’s trust and confidence in the Court. In an effort to ensure that the highest standards of confidentiality and probity are maintained, the Court will continuously keep under review, its policy of sending advanced copies of its judgments to attorneys.
The Attorney General has since removed the post and has apologized.
