Apr 04, 2020 News
By Rehanna Ramsay
The Court of Appeal is set to rule tomorrow, on the application filed by the APNU- AFC‘s Ulita Moore, against the decision of the Guyana Elections Commission (GECOM) to hold a recount of votes cast at the Regional and General Elections held last month.
The three judges – Justices of Appeal, Dawn Gregory and Rishi Persaud as well as High Court Judge, Brassington Reynolds – listened as lawyers involved in the case presented their oral arguments at the Court of Appeal in Kingston, Georgetown yesterday morning.
Early on in the proceedings, Moore’s lawyer, Roysdale Forde, implored the Court to give an undertaking, which will stay the judgment of Full Court.
The Full Court had effectively discarded Moore’s application to inquire in the constitutionality of GECOM’s decision to hold a recount. That Court had also discarded the interim injunctions blocking the recount in addition to refusing to grant a stay of its judgment.
As such, Forde requested that a stay be granted until the ruling of the Appeal Court scheduled for Sunday at 11:00 hours. Referencing a press release issued by the GECOM, Forde told the Court that there appears to be a plan in motion to commence the recount despite the current Court process. He warned that any commencement of the recount by GECOM at this point could result in undermining of the litigation.
“What we are saying your honours, is that this development could affect the proceedings in the court. So we are asking this court to preserve the status quo to act on its own inherent jurisdiction.”
In response to Forde’s request, Attorney for GECOM’s Chairperson, Kim Kyte, told the court that the application caught her by surprise.
“I am only learning of this for the first time in the courtroom, your honours. I will need to consult with my client before taking a position before this honourable Court.”
She said, she would need to contact her client, retired Justice Claudette Singh, before taking any decision.
Justice Gregory therefore tasked Kyte with informing the court of any developments in this regard. Towards the end of the proceeding, the Court was informed that there is no intention by GECOM to commence the recount before the ruling set for Sunday at 11:00am.At the interim, the Court listened to Moore’s other lawyers, Grenadian Queen’s Counsel, Dr. Alexis Francis and Dr. Keith Scotland of Trinidad and Tobago.
Contrary to the views upheld by the Full Court, Dr. Alexis argued that the constitutional issues by Moore‘s application are not issues for an elections petition Court but rather a review by a High Court.
Dr. Alexis asked the Appeal Court to consider Moore’s request to have GECOM and its Chairperson carry out their functions, which is to declare the winning list of candidates and name the President. He argued that the constitutional role of the GECOM Chairman and GECOM had not been usurped by the Caribbean Community (CARICOM) high-level team, which should have supervised the recount.
He held that the rule of law requires that the GECOM Chair and Returning Officer be treated equally.
“They are both subject to judicial review in the execution of their duties.”
Similarly, Dr. Scotland said that the issue of judicial review should be considered.
“The Full Court just got it plainly wrong. The Court does have jurisdiction to hear the matter.”
On the other hand, Trinidadian Senior Counsel, Douglas Mendes, who appeared on behalf of Opposition Leader, Bharrat Jagdeo, continued to rely on Section 140 of the Representation of the People Act, which prohibits any court from enquiring into deliberations and decisions of the Commission.
“As stated in Guyana’s constitution, it is an election court to hear issues concerning unlawful acts and omissions instead of it being dealt with at an intermediate stage.”
Mendes stressed too that the supervision of the process by CARICOM was the mechanism which GECOM chose to correct the deficiencies which had been raised about the process and that arrangement would not take away from the powers of GECOM.Given the arguments raised by Mendes, Justice Dawn Gregory questioned whether the Full Court was the proper court to appeal Justice Franklyn Holder’s decision that he had jurisdiction to hear Moore’s case.
Justice Gregory said her questions were tied to whether the jurisdiction in such an appeal matter ought to have been within the purview of the Appellate Court. The Judge cited Article 133 of the Constitution, which sets out the position of appeals and provides details on questions on the interpretation of the constitution, which are to be decided by the High Court and where appeals are to be made to the Appellate Court.
“My concern is whether the nature of what was before the court was in fact held within the jurisdiction of the Full Court. I say that to ask whether it was not the Court of Appeal to have entertained the appeal on the jurisdiction.”
“My question is whether the full court which traditionally has been a court to deal with interlocutory appeals indeed is the court to entertain an appeal that concerns constitutional questions. I believe that all the parties say that they are some constitutional questions involved,” Justice of Appeal Gregory enquired.
On Tuesday, the Full Court, comprised of Chief Justice (ag) Roxane George and Justice Nareshwar Harnanan, ruled that the High Court did not have the jurisdiction to hear the injunction application brought by Moore.