…Moore’s lawyers warn against CARICOM validating elections
By Svetlana Marshall
DESCRIBING it as a landmark ruling, the battery of lawyers representing Ulita Moore, on Tuesday, said the Court of Appeal’s decision and consequential orders have made it clear that the Guyana Elections Commission (GECOM) cannot delegate its supervisory functions to any other authority regardless of the circumstances.
The Court of Appeal has ruled that only GECOM can supervise election in Guyana or any aspect of it, as established in the Articles 62 and 162 of the Constitution of Guyana. “…it would be unconstitutional for the Guyana Elections Commission to abdicate or delegate its supervisory function over the election process, more particularly the recount of ballots cast at the March 2 elections,” the Appellate Court said on Tuesday as it handed down consequential orders following Sunday’s decision in the case – Ulita Moore v Bharrat Jagdeo and others.
Moore, a private citizen, moved to the High Court on March 17 to block a decision by the elections commission to have a high-level Caribbean Community (CARICOM) team supervise a national recount of all the votes cast at the March 2 General and Regional Elections based on an agreement between President David Granger and Leader of the Opposition, Bharrat Jagdeo. And while the Full Court had ruled that the High Court had not jurisdiction to determine whether GECOM had acted outside of its constitutional powers when it acceded to the agreement, the Appellate Court set aside that decision. It went one step further and ruled that any agreement that usurps the constitutional powers of GECOM to supervise elections in Guyana would be unconstitutional.
Moore was represented by Grenadian Queen Counsel, Dr. Francis Alexis, Attorneys-at-Law, John Jeremie S.C., Keith Scotland out of Trinidad and Tobago, and Guyana’s Senior Counsel, Roysdale Forde, and Attorney-at-law, Mayo Robertson.
Robertson, moments after the Appellate Court issued the consequential orders, told the Guyana Chronicle that going forward, GECOM’s decisions and actions must “pass constitutional muster.”
“Our courts have demonstrated that even when the President, the opposition leader and CARICOM Heads agree on a course of action, that the courts, as guardians of the constitution, will scrutinise to ensure compliance with our constitution,” the legal counsel said.
Robertson said the individuals and authorities who have sought to “bully and intimidate” GECOM based on their political agenda, must take note that citizens of Guyana have access to the courts. Private parties, he emphasised, cannot agree to circumvent the Constitution – the supreme law of the land.
“No matter how urgent the matter is, an unconstitutional solution does not serve the interests of the people of Guyana,” Robertson told this newspaper.
Senior Counsel Jeremie, who had made his court appearance via Skype, in an online interview with the Guyana Chronicle said his client – Moore – has been vindicated.
“Indeed it is a vindication of the principle that the independent institutions of Guyana can solve all of the difficulties of the Guyanese people. That is what my client felt and that is what the Court of Appeal has held,” the Trinidadian senior counsel said.
Senior Counsel Forde, in echoing similar sentiments, said the Appellate Court clarified the Constitution and the electoral laws of the country to the extent that the elections commission cannot abdicate or delegate any of its supervisory functions to any other authority.
“It indicates clearly that the agreement entered into by the leader of the opposition and the President is unconstitutional. The Court of Appeal rejected the position of the leader of opposition, represented by Mr. Anil Nandlall and Mr. Douglas Mendes, that the agreement was constitutional and that the High Court could not exercise its jurisdiction to examine any unconstitutionality on the part of GECOM…” Forde told this newspaper.
In the High Court, Full Court and Appeal Court, Nandlall and Mendes had argued that Moore’s challenge to GECOM’s decision to facilitate a recount under the supervision of CARICOM could only be adjudicated through an elections petition. But the Court of Appeal ruled that the High Court has jurisdiction to determine if such agreement fell within the perimeters of the Constitution. On Sunday, it ruled that any such agreement was unconstitutional – a position it reinforced on Tuesday.
In a letter to the Court on Monday, Moore’s lawyers had asked that the interim orders granted by High Court Judge, Franklin Holder, be restored having been discharged by the Full Court. The Appellate Court declined to grant such order.
“The interim orders were not restored because the Court of Appeal granted final relief in the matter. The interim orders were only necessary to stop GECOM from acting on the agreement which we contended was unconstitutional,” the senior counsel explained.
He further explained that the Appellate Court, having determined that the agreement was unconstitutional, in effect, granted Moore’s relief, and as such there was no need for interim orders.
Forde said it is his expectation that GECOM will adhere to the ruling of the Appellate Court, even as he expressed concerned over intentions to have CARICOM validate the recount process this time around.
When the elections commission last met on Monday, Government nominated Commissioner, Vincent Alexander, told reporters that the elections commission has a high preference for CARICOM’s involvement in the electoral process. “We have decided today that our preference, in terms of an external body to give some validation, is CARICOM,” Alexander told reporters. According to him, the CARICOM arrangement would differ from the observatory roles of Elections Observation Missions. “The others were never for validation; the others were observers. CARICOM came into the process with a particular role,” Alexander said.
But the senior counsel said only GECOM can validate elections in Guyana. “Validation is a matter for the elections commission because that forms part of GECOM’s responsibility… It has to be GECOM validating the electoral process,” Forde emphasised.
He said GECOM, as established by the Appellate Court, must adhere to the Constitution and electoral laws of the country.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_04_09_2020