The Guyana Court of Appeal (CoA) yesterday unanimously dismissed an appeal filed against the decision of Chief Justice (ag) Roxane George SC which dismissed Election Petition No. 88 and was filed in the name of Claudette Thorne and Heston Bostwick.
The decision was handed down by Acting Chan-cellor of the Judiciary, Yonette Cummings-Edwards and Justices Dawn Gregory and Rishi Persaud.
Attorney General and Legal Affairs Minister Anil Nandlall in a statement on Facebook said that the Appellate Court upheld the state’s submissions and confirmed the decision of the “learned “Chief Justice that the Election Laws (Amendment) Act 2001 and Order 60 made thereunder, are not unconstitutional but lawful and valid”.
The minister said that the court ruled that the national recount of the ballots at the 2020 Elections conducted by the Guyana Elections Commission (GECOM) was lawful, constitutional and not in breach of the Separation of Powers Doctrine.
Nandlall who represented the state, contended that the Appellants failed to discharge the heavy legal burden of establishing in law the “unconstitutionality” and illegality they alleged against the Election Laws (Amendment) Act, Order 60 and the national recount of the ballots done.
Against this background, he reminded that there were difficulties in declaring the final results of the 2020 Elections, but GECOM exercised its constitutional duty enshrined in Article 162 of the Constitution and its statutory powers “ensconced” in the Election Laws (Amendment) Act and crafted Order 60 to overcome those difficulties.
“These powers exercised by GECOM were therefore “within the powers” (intra vires), reasonably exercised and in compliance with the intention of the framers of the Constitution and Parlia-ment. The Court also emphasized that the consequential recount of the ballots conducted were done in a transparent, fair and accountable fashion”, Nandlall informed.
The Attorney General added that the Court rejected the Appellants’ contention that GECOM by “promulgating” Order 60 “usurped” the law-making powers of Parliament.
“On the contrary, the Court found that GECOM’s power to issue subsidiary legislation in the form of Order 60 was exercised within the acceptable legal parameters and there was no trespass upon the province of Parliament”, the minister said.
The Court awarded costs for $150,000 in favour of the four respondents who participated by way of submissions.
Meanwhile, Attorney at Law, Roysdale Forde, SC, who represented the appellants, told Stabroek News that he and the legal team will review the written decision and determine what the next step would be.
Election Petition 99 of 2020, which was filed on behalf of petitioners, Monica Thomas and Brennan Nurse, was thrown out by the Carib-bean Court of Justice (CCJ) in October 2022.
The Caribbean Court of Justice (CCJ) on October 19, 2022 ruled that the Guyana Court of Appeal has no jurisdiction to hear the appeal of a decision by acting Chief Justice Roxane George SC to throw out an election petition challenging the results of the March 2nd 2020 polls.
In a majority judgment, the Trinidad-based court of last resort for Guyana has found, among other things, that although the petition had not been determined on its merits, the decision to throw it out cannot be appealed and so the local appellate court cannot entertain such a challenge.
The ruling means that the petition – one of two lodged on behalf of APNU+AFC – has been completely lost.
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 had 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 represented 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 Nandlall who was also a respondent in the matter had previously argued that the compass of the appeal was narrow as the singular issue was whether GECOM acted properly in delegating certain powers in Order 60 utilizing Section 22 of the ELAA.
His position was 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.
