…Legal luminaries say proposed Terms of Reference unconstitutional
…assert GECOM’s sole remit to supervise elections
A NATIONAL recount of the votes cast during the March 2 General and Regional Elections under the supervision of the Caribbean Community (CARICOM) would be a complete breach of the Constitution and the Electoral Laws of Guyana, legal luminaries are now arguing. They have pointed to the fact that the Guyana Elections Commission (GECOM) is the sole authority responsible for the supervision of elections here.
“There is no legal basis in the Constitution or Representation of the People Act, Cap. 1:03, to conduct such a recount; to do so will be tantamount to a usurpation of the functions of GECOM to independently supervise these elections, and equally, GECOM would be abdicating its responsibilities to conduct elections,” the group of concerned legal luminaries, who asked not be named, told Guyana Chronicle.
Last Saturday, Chairman of CARICOM and Prime Minister of Barbados, Mia Mottley, announced that President David Granger and the Leader of the Opposition, Bharrat Jagdeo, have agreed to a national recount under the watch of a high-level CARICOM team but the concerned lawyers said the proposed Terms of Reference (ToR) to govern the process has no legal basis.
“The proposed Terms of Reference, should it be implemented, would amount to a blatant breach of the Constitution and the laws of the Co-operative Republic of Guyana. Therefore, the proposal cannot be supported,” they argued. In justifying their position, the lawyers said after careful deliberation and consideration of the constitutional and statutory provisions governing GECOM and presiding and returning officers, it was found that the Elections Commission is the sole authority responsible for the independent supervision of Elections in Guyana. These provisions, they said, are laid out in Articles 62 and 162 of the Constitution.
The Legal luminaries further pointed to two other provisions in the Constitution that bar CARICOM from supervising the national recount of the votes cast in the 10 Electoral Districts.
1. In accordance with Article 162 (1) (a), the Commission shall exercise general direction and supervision over the administrative conduct of all elections of members of the National Assembly.
2. In accordance with Article 226 (1) and (7), in the exercise of its functions, the Elections Commission shall not be subject to the direction or control of any other person or authority.
Besides, the lawyer pointed out that in the case Christopher Ram v Attorney General of Guyana et al [2019] CCJ 14 (AJ) the CCJ ruled at paragraph 7 that- “Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be held. It would not therefore be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities. It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives.”
Aside from the supervisory provisions, the legal luminaries submitted that the Representation of the People Act clearly states that declarations made by the respective Returning Officers are final as no lawful request for a recount was made. In the case of Regions Two, Three and Four, requests for recounts in those districts were all denied. On these grounds, the lawyers iterated that there is no legal basis in the Constitution or Representation of the People Act to conduct such a recount.
Abide by constitution
While President Granger has agreed to a national recount, he made it clear that the proposed initiative must be executed in accordance with the Constitution of Guyana.
“…the CARICOM Initiative should operate within the legal framework of the Constitution of Guyana and respect the role of the Elections Commission and the rulings of the Supreme Court. It will not act independently,” President Granger said on Sunday.
In his communication with the CARICOM Chair, President Granger indicated that the ToR governing the recount process should be crafted by GECOM and not CARICOM, but the legal luminaries are maintaining that CARICOM’s role as a supervisory body amounts to a breach of the Constitution and the Electoral Laws. Nonetheless, in iterating his commitment to the rule of law and the Constitution, President Granger said he respects the integrity and autonomous nature of the Elections Commission, and will abide with its declarations and the rulings of the Court. He said in the absence of such declarations, GECOM must be allowed to do its work as it seeks to bring the electoral process to an end. The Head of State was keen on noting, however, that the General and Regional Elections were conducted peacefully and in accordance with the Constitution and Laws of Guyana on March 2, 2020, but the events that followed it thereafter marred the excellent work of the Elections Commission.
“Confusion ensued at the Office of the Returning Officer for District Four in the wee hours of Wednesday, 4th March 2020, as a result of an invasion of the premises by political elements. Statements following the events of 4th March by the observer missions also created uncertainty in the minds of the citizenry. The Opposition People’s Progressive Party (PPP) so far approached the Supreme Court on three separate occasions to obstruct the work of the Elections Commission,” President Granger summarised. He said those actions coupled with the calls for recount, allowed for the Supreme Court to determine the way forward.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_03_18_2020