With the completion of arguments in the appeal of Chief Justice Roxane George’s ruling throwing out the Elections Petition which challenged the recount order from which the polls of March 2nd 2020 were declared, the Court of Appeal will next move to rule.
Following the conclusion of yesterday’s hearing, acting Chancellor Yonette Cummings-Edwards announced that the Court will send out notices informing when it will be delivering its judgment.
The appeal was filed by petitioners Claudette Thorne and Heston Bostwick who have maintained the argument that Section 22 of the Elections Law (Amendment) Act (ELAA) 2000 is unconstitutional and that Order 60 of 2020, which authorized the recount of ballots of the March 2nd 2020 elections, is invalid and of no effect.
In his submissions to the court yesterday morning, their attorney Roysdale Forde SC argued vehemently that Parliament unlawfully abdicated its power to the Guyana Elections Commission (GECOM), by allowing GECOM to craft the Order by which the recount was done.
He argued that Article 160 (3) A (4) empowers only Parliament to pass legislation to deal with the conduct of elections and no other body, which he said results in an unconstitutional state of affairs.
Against this background he contended that Section 22 by which Order 60 was facilitated, is inconsistent with the very supremacy of the Constitution and is therefore of no legal force or effect.
He said it is Parliament which is clothed with the exclusive authority and therefore cannot amend or modify that power to pass to the Elections Commission.
Forde argued, too, that Section 22 is invalid because it fails to give preconditions for its exercise and so its scope and ambit are vague.
During his presentation, Chancellor Cummings-Edwards sought to ascertain from him whether, given the circumstances that Parliament was not in place at the material time, GECOM was not rightly empowered to act as provided for by the ELAA, to swiftly resolve the difficulty which had arisen.
She asked him whether that was not what was contemplated and envisioned by the legislature in its wisdom; especially since it is impossible for Parliament to legislate for every eventuality that may present itself.
In response, Forde said he was of the view that given the crucial nature of the issue to have been resolved, it could not be that that would have been even remotely in the intention of Parliament. He said that an issue such as that could not simply be resolved by GECOM in the manner it was, but rather via an elections petition.
He said that the legislature may have envisioned addressing more ordinary legislation of an administrative nature in such a manner; while submitting that the conduct of elections is for Parliament’s exclusive control regarding the legislative framework of the electoral regime.
Against that background, Forde held to his position that the elections were not lawfully conducted and asked the Court to uphold the appeal.
At the conclusion of the hearing, Chancellor Cummings-Edwards who is presiding over the appeal together with Justices of Appeal Rishi Persaud and Dawn Gregory announced that the Court will now take time to consider the arguments and that notices will be sent informing when it will deliver its judgment.
The petitioners are also claiming that Returning Officers’ declarations could not have been set aside and that the actions of GECOM were unlawful and infringed on the Jurisdiction of the High Court under Article 163 of the Constitution.
Order 60 was created by virtue of Article 162 (1) of the Constitution and Section 22 of the ELAA, to resolve irregularities before declaring the results of the elections.
GECOM’s lawyer Anthony Astaphan has previously argued that the Chief Justice in her ruling nullifying the petition rightly pointed out that the authority controlled by parliament was in fact circumscribed. He argued that Section 22 is not unconstitutional and that the Chief Justice was correct in her findings.
He asserted that had it not been for Order 60 “…only God would have been able to tell us when the declaration (of the results) would have been made” adding that it was in the public interest that GECOM acted and ensured that such a declaration was made.
Senior Counsel Douglas Mendes who represents Vice President Bharrat Jagdeo—one of the Respondents in the action, in his submissions also maintained that Order 60 was properly and lawfully issued by GECOM using the power of Article 162 (1) of the Constitution and Section 22 of the ELAA. And even if Section 22 was determined to be unconstitutional Mendes pointed out that the elections was not “a sham” and in fact reflected the will of the Guyanese people.
“…so there is no basis to invalidate the elections,” he has maintained; pointing out that there is no challenge in the case to the recount exercise itself but rather the only issue raised is the constitutionality of Section 22.
Meanwhile, Attorney General (AG) Anil Nandlall SC who is also a respondent in the matter has previously argued that the compass of the appeal is narrow as the singular issue is whether GECOM acted properly in delegating certain powers in Order 60 utilizing Section 22 of the ELAA.
His position is that GECOM acted lawfully and constitutionally in exercising its authority, contending that that issue has already been determined right up to the Caribbean Court of Justice (CCJ) and as such it would be impossible for the presumption to be rebutted as there is no unconstitutionality in the germ of Order 60.
He has asked that the appeal be dismissed.
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 results from the elections. Among other things, Chief Justice George ruled that Section 22 of the ELAA and Order 60 made thereunder by which the recount was facilitated, were not in violation of the Constitution.
It has been 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 however challenged the decision of the local appeal court giving itself jurisdiction to hear the appeal.
Their contention before the CCJ was that having not been determined on its merits, the petition could not be appealed. The Trinidad-based CCJ agreed and set aside the Court of Appeal’s ruling while finding that the Chief Justice was correct in her ruling.
