By Maxwell Edwards
THE Caribbean Court of Justice (CCJ) as our apex court, arrogated to, and gave itself jurisdiction in spite of section 4 (3) of the CCJ Act. The CCJ found that appellate jurisdiction by saying that article 177 (2) (b) means what it says. It does not need any interpretation. No Consequential Order was made. Most significantly, the CCJ ruled that the CEO advice tendered to Gecom was invalid because it was guided by the Court of Appeal (COA) ruling which was set aside by the CCJ as having been made in excess of jurisdiction. No post mortem can change that. But the CCJ would need to clarify what is the effect as to its obiter dicta, inter alia, that the recount votes are valid unless invalidated by a court. Does it override the ten (10) declarations of the ROs (made under and pursuant to ROPA, Cap 1:03 to which any order (i.e. SL which Order 60/2020 is, must be subject) and which are extant and have not been invalidated by any court.
So, what in practical terms does the ruling means? Simply, it means this: since article 177 (2) (b) is so plain in its language that it needed no interpretation, article 177 (2) (b), REMAINS UNINTERPRETED. But what is plainer than the words “more votes are cast” (as this surely has an element of ambiguity – does “votes” include obviously fraudulent votes of dead people etc.) are the words in the said article 177 (2) (b) viz “…….ACTING ONLY ON THE ADVICE OF THE CHIEF ELECTION OFFICER…..” I ask rhetorically – what can be plainer than that? The chair has no discretion. She must act only on the CEOs advice.
One more thing: the CCJ by now requiring the CEO to act on the Chair’s order of June 16 which derives its legitimacy from Order 60, which is in our law mere SUBSIDIARY LEGISLATION, has purported to turn our legal system and the foundation of our jurisprudence, the most important aspect of which is the supremacy of our constitution, UPSIDE DOWN, ON IT’S HEAD – The CCJ has, in effect, said that the declaration limb of article 177 (2) (b) of the SUPREME LAW is subject to, and is of less legal signification and value, than a piece of SUBSIDIARY legislation which has even less value than an Act of Parliament; (such as ROPA Cap 1:03); and not even an Act of Parliament can be inconsistent with the Constitution which in clear words which the CCJ needs to be reminded of, demands more than just a flippant reference to. It is article Eight. It says “This Constitution is the supreme law of Guyana and if any other law is inconsistent with it that other law SHALL TO THE EXTENT OF THE INCONSISTENCY BE VOID” (article eight).
So, the chair’s directive of June 16th CANNOT BE INCONSISTENT TO ANY EXTENT WHATSOEVER with the plain words of article 177 (2) (b) which plainly says both the chair, and/or GECOM must act on the CEOs advice.
And so, on the present state of facts, that advice in my understanding of the CCJ ruling, consistent with section 96 of ROPA and the CCJs ruling (which gives recognition to both the recount and section 96) needs only to give effect, and “valid votes” (as in section 96) meaning to the ten (10) returning officers declaration ALREADY MADE TO THE CEO AND NOT INVALIDATED by any count of law. I repeat, the CCJ was very clear that it was ruling ONLY ON THE JURISDICTIONAL POINT and was not making any consequential orders.
And to the CEO I say: you are legally obligated, and must interpret the chair’s June 16 directive (thereby complying with the CCJ’s ruling) so as to make it consistent with section 96, and more importantly, and bindingly, ensure obedience with the clear intendment of article 177 (2) (b) (the declaration limb) of the Supreme Law – the Constitution of the Cooperative Republic of Guyana, as interpreted by the CCJ.
I end with this: In a subsequent letter I will write and explain the historical background to the words “acting only on the advice of the Chief Election Officer….” How those words were by constitutional alteration, inserted into article 177 (in 2000 – 2001) after the contentious 1997 GREs, and how the mischief cured, and intended to be cured, by those words was the dictatorship of the chairman (as displayed by the then Chairman Doodnauth Singh) in making a declaration as he saw fit. It was to put an end to such dictatorship that the Constitution was altered and now requires the Chair to act on the advice of the CEO.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020