In dismissing the elections petition appeal on Monday, Chancellor of the Judiciary (ag), Yonette Cummings-Edwards rejected the argument that the genesis of the recount order for the March 2020 general elections had transgressed the separation of powers doctrine.
Lawyers for the petitioners, Claudette Thorne and Heston Bostwick had had as one of the planks in their appeal that the separation of powers doctrine had been breached by the Guyana Elections Commission (GECOM) in promulgating the recount order to settle the dispute over the elections results.
Justice Cummings-Edwards in rendering her decision at the Guyana Court of Appeal disagreed.
Alluding to Section 22 of the Election Laws (Amendment) Act 2001 the acting chancellor of the judiciary said “I find no breach of the separation of powers doctrine”.
“So, that removing or the removal of the difficulty clause or sunset clause as it is referred to, does empower GECOM here to make subsidiary legislation or provisions to remove any difficulties which may have arisen in executing its functions”, Justice Cummings-Edwards concluded.
It was on this note that the Court of Appeal upheld the government’s submissions and confirmed the decision of Chief Justice, Roxane George SC that the Election Laws (Amendment) Act 2001 and Order 60 made thereunder, are not unconstitutional but lawful and valid; and consequently, the national recount of the ballots at the 2020 Elections conducted by GECOM was lawful, constitutional and not in breach of the Separation of Powers Doctrine.
The three-judges panel unanimously dismissed the appeal against the decision of Chief Justice (ag) George which threw out Election Petition No. 88.
Justice Rishi Persaud in his judgment noted that “A crucial pillar of any democratic society is one in which supreme power is vested in the people, and exercised by them, directly or indirectly, through a system of representation, usually including periodically held free and fair elections.”
He affirmed that “There is no evidence on record which will even remotely suggest that an election has been, or may have been, affected by an unlawful act”.
Similarly, Justice Dawn Gregory said that there was no breach, violation or non-compliance by GECOM of the Constitution or the laws governing elections such as to make the elections a sham or a travesty as claimed by the petitioners.
The judge was adamant that the election petition failed to establish grounds to invalidate the elections or to declare the process null and void.
“I agreed with the Chief Justice that in its implementation, which found that GECOM had not unlawfully utilized its powers when it enacted Order No 60 and it held the recount. I have concluded that the Chief Justice’s decision should be affirmed and the appeal should be dismissed”, Justice Gregory said.
Attorney Roysdale Forde SC had argued on March 22nd this year that Parliament unlawfully abdicated its power to GECOM, by allowing it 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.
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 and as such it would be impossible for the presumption to be rebutted as there is no unconstitutionality in the germ of Order 60.
Concerning costs, Forde suggested on Monday that each party bear its costs due to the significant public importance and constitutional value of the issue that was at hand.
He noted that the case affected elections and there was a need for clarity since the 2025 General and Regional Elections are underway.
Mendes vehemently argued that the applicants should be ordered to pay costs.
He cited the clear terms in which the matter was dealt with, and the additional costs incurred by his client.
In the end, the Court awarded costs for $150,000 in favour of the four respondents who participated by way of submissions.
