THE People’s Progressive Party/Civic (PPP/C) has moved to the High Court, asking that it be heard in the event that there is a legal challenge to the results of the National Re­count of the Ballots cast at the Central and Regional Elections. 

“Please be informed that, should any legal proceedings be filed in the Supreme Court of Judicature in relation lO, or in connection with, or in any manner whatsoever, touching and concerning the National Recount of ballots cast at the General and Regional Elections held in Guyana on March 2, 2020, being conducted by the Guyana Elections Commission, at the Arthur Chung Convention Center, I hereby respectfully request an opportunity to be heard before any Order of Court is made or any relief is granted by any Court,” PPP/C’s At­torney-at-Law Anil Nandlall said in a letter to the Regis­trar of the Supreme Court. 

The letter, seen by the Guyana Chronicle, was dat­ed June 8, 2020. 

In the letter, Nandlall indicated that he was acting on behalf of the PPP/C – an interested party that would be aggrieved or affected by any order or relief. The PPP/C wrote U1e letter in anticipa­tion that the A Partnership for National Unity+ Alliance for Change (APNU+AFC) may challenge any decision by the Guyana Elections Com­mission (GECOM) to use the current tabulated votes from Ule National Recount to declare the results of the General and Regional Elec­tions held last March. 

Based on the Statements: of Recount (SORs), which. were generated and tabu­lated at the Arthur Chung Conference Centre (ACCC), PPP/C secured 233,336 vote5, while APNU+AFC raked in 217,920 votes. But while the recount shows the PPP/C in the lead by 15,416 votes; the recoW1t unearthed irreg­ularities and alleged cases of electoral fraud, which, according to the APNU+AFC reportedly have compromised 90,000 votes.

The anomalies cited by the APNU+AFC were recorded in Observation Reports during the recount of votes at the level of the workstations at the Conference Centre, and will form a major par-t of the rt ports that would be com piled by the Chitf Elections Officer, for submission to the Elections Commission. The Elections Commission, beaded by ,Justice (Rtt’d) Claudette Singh, will then deliberate on the CEO’s report, and determine the way forward.

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_06_09_2020

…All eyes on CEO for report on results
…President maintains only GECOM can declare winner

By Svetlana Marshall

THE completion of the recount and tabulation of votes cast at the General and Regional Elections now paves the way for the Chief Elections Officer (CEO), Keith Lowenfield to compile his reports on the electoral process for submission to the Guyana Elections Commission (GECOM).

Those reports not only include a tabulation of the matrices for the recount of the 10 Electoral Districts, but also a summary of the Observation Reports for each District. Based on the Statements of Recount (SORs), which were generated and tabulated at the Arthur Chung Conference Centre (ACCC), the People’s Progressive Party/Civic (PPP/C) has secured 233,336 votes, while the A Partnership for National Unity (APNU+AFC) raked in 217,920 votes.

But while the recount shows the PPP/C in the lead by 15,416 votes, the recount unearthed massive irregularities, and alleged cases of electoral fraud, which reportedly have compromised 90,000 votes.

During the National Recount, more than 41 ballot boxes were discovered with none of the statutorily required documents, while other boxes had missing Certificates of Employment, Official Lists of Electors, Oaths of Identity, Poll Books, Unused Ballots and Counterfoils.
There were also cases where the Oaths of Identity were unsigned, and ballots were either unstamped or partially stamped, resulting in their being deemed “Rejected”. Further to that, the APNU+AFC has cited more than 3,000 cases in which it alleged that unscrupulous people voted in the place of the dead, or persons who were out of the jurisdiction on March 2 when the General and Regional Elections were held here. According to the APNU+AFC, these irregularities have amounted to 6,000 cases, which point to electoral fraud, and have affected some 90,000 votes.

These irregularities were recorded in Observation Reports during the recount of votes at the level of the workstations, and will form a major part of the reports that would be compiled by the Chief Elections Officer.

As the tabulation of the SORS came to a close at the Conference Centre on Monday, PPP/C Executive Member, Anil Nandlall told reporters that while it is the responsibility of the Chief Elections Officer to compile Observation Reports, in addition to a report on the tabulation of votes, he cannot be subjective in his reporting to the Elections Commission, chaired by Justice (Ret’d) Claudette Singh.

NO PERSONAL INPUT

“The Order does not provide for the CEO to have any personal subjective input. He is simply to summarise the Observation Reports, and tabulate, aggregate and total the numbers, which would have been tabulated, and which would have been put on the Certificates, constituting the declaration of results for each of the region,” Nandlall said. “There is no place; I want to emphasise, no place for the Chief Elections Officer to inject a personal opinion, to offer any recommendation of any sort, whatsoever,” he submitted.

According to Nandlall, the CEO’s duty is “mechanical and straightforward.”
According to the amended Order, which legally triggered the recount of the votes, the CEO’s reports must be submitted on or before June 13, 2020 to allow for deliberation at the level of the Elections Commission. The amended order states: “The Commission shall, after deliberating on the report… determine whether it should request the Chief Election Officer to use the data compiled… as the basis for the submission of a report under Section 96 of the Representation of the People Act, Cap 1:03…”

Once the second report is compiled, the Elections Commission will have no more than three days to declare the results of the final credible count of the Elections.

While the High Court, in March, indicated that Article 162 (1) (b) gives wide powers to the Elections Commission to ensure an impartial and fair elections process, Nandlall is contending that it is not within GECOM’s remit to investigate the irregularities that surfaced during the recount, as he pointed to Article 163 of the Constitution.

“There are things that can be done in arecount exercise, and there are things which cannot be done. So GECOM, lawfully, has no jurisdiction, no power, no authority to pronounce on credibility, legality or validity of its process. In any event by the principle of natural justice, one cannot be a judge, in one’s own cause,” he opined.

While there have been glaring evidence of irregularities, the PPP/C has maintained that the recount was merely numerical, though the Order the reconciliation of the ballots issued with the ballots cast, destroyed, spoiled, stamped, and as deemed necessary, their counterfoils/stubs; authenticity of the ballots and the number of voters listed and crossed out as having voted.

SMALL PARTIES

Notwithstanding the provisions of the Order, a number of small political parties have also argued that it is not for GECOM to act on the irregularities. “In relation to the dead and migrated voters, and the question of anomalies proposed by the APNU+AFC, we do not support those claims. We do see that persons had the right to vote; they came out, they exercised their franchise, and they did what is best for them,” Change Guyana Representative Dexter George said. According to him, the electoral process was fair.

A New and United Guyana (ANUG) Representative Mark France, while noting that the recount was a reflection of the contents of the ballot boxes, acknowledged that the electoral process is not completed. “It (the recount) was done as the law would have said and the numbers reflect what exactly were in those boxes…It is a true reflection of the materials, in terms of the votes, that were in those boxes. The other aspects that the recount is looking at will not be finished in terms of just looking at the numbers here,” France told reporters outside of the Conference Centre.

Nonetheless, Nandlall expressed the hope that the remaining components of the electoral process will be concluded in an orderly fashion, and in keeping with the letter and spirit of the Order, the Constitution, and the Representation of the People Act. Asked whether GECOM should await the report of the Caribbean Community (CARICOM) Scrutinising Team before arriving at its declaration of the results of elections, Nandlall responded in the negative.

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_06_09_2020

Dear Editor, 

The decision made by the Guyana Elections Commis­sion to include in its tabulation, ballots which are patently unverifiable, threatens to make a mockery of the entire recount process. 

The Guyanese public was well schooled regarding the purpose of the recount an exercise aimed at detem1ining the credibility of the voting and result of the March 2, 2020 Gen­eral and Regional Elections. Indeed, as the third recital of the Order authorising the recount makes clear, the recount exer­cise is aim at” … determining a final credible count”. Against the background of calls for transparency, all Guyanese prepared themselves to be spec­tators at an event that promised to judge harshly any suggestion of impropriety or dishones­ty. Party scrutineers stood as linesmen and women to blow the whistle at any infraction, or any breach of elections laws and regulations. 

Then came the Lower East Coast saga and 41 boxes that appeared to have ballots but none of the statutorily required supporting documents. These documents are required! for tl1e specific purpose of eliminating voter fraud. It strains credulity to accept that the absence of verifying documents in all these 41 boxes is of no consequence and does not boldly scream electoral fraud. It is shocking therefore that GECOM decided that the votes in those offending 41 boxes were to be included in the tabulation of the recount process. Fundamental questions cannot be answered. Are those votes valid? Are the persons who cast those ballots legitimate voters? What documentation supports the legitimacy of those ballots? This recount process is not merely about counting votes, it is about counting valid votes. If one is merely counting votes, then what is the point of this recount process with its meticulous rec­onciliation requirements? 

Paragraph 14 of d1e Order· of May 4, 2020 which autho­rises the recount makes it clear that the recount is about valid votes and not simply votes. Paragraph 14 requires submission of a report under Section 96 of the Representation of the People Act Section 96 re­quires a report to be completed by the Chief Elections Officer ” … after calculation the total nun1ber of valid votes of elec­tors”. The distinction between simply a vote and a valid vote is thus specifically made in our electoral law and incorporated by reference into the Order authorising the recount. 

The Cambridge English Dictionary defines valid as based on truth or reason. As­cribing the ordinary meaning to the word valid d1erefore makes it clear that the votes cast in the 41 questionable boxes do not pass the validity test. There is no evidence in the boxes that the votes are based on truth or reason. 

While GECOM’s authority to issue the Order authorising the recount derives from Article 162 of the Constitution and Section 22 of Act 15 of 2000, the power so derived is not limitless. Article 162{1Xb) re­quires that any action taken by GECOM must be “necessary or expedient to ensure impar­tiality and fairness”. By no measure could the inclusion of votes whose validity is patently suspect be considered necessary to achieve impartiality or fairness. This is especially true since all the questionable votes were purportedly cast from a well-known stronghold of one party and overwhelming favour that party. After all, the hue and cry that gave rise to the recount in the first place are from far less well documented allegations of tabulating of invalid votes. 

How could GECOM then, with all the documen­tation provided and virtually unchallenged by anyone, include votes that art clearly 

not valid. To do so is not only unfair but also illegal.

Thank you

Sincerely,

B. Mayo Robertson

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_06_09_2020

LEADER of the Opposition, Bharrat Jagdeo, has stated that his party, the People’s Progressive Party/Civic (PPP/C), is “extremely pleased” with the Caribbean Court of Justice’s (CCJs) Wednesday decision and expects that the elections commission will act on the basis of the “clear guidance” of the court.

On Wednesday, in assuming jurisdiction to hear an application filed by the PPP/C, the CCJ set aside the decision of the Court of Appeal on the interpretation of the constitution and invalidated the elections report submitted by the Chief Elections Officer Keith Lowenfield.

Subsequently, providing his reaction on the matter via video, the opposition leader said that his party had held the belief from the beginning that the decision of the Appellate Court was “perverse” and that the court lacked jurisdiction.

He said that the PPP/C is also pleased that the CEO’s previous report has been set aside and a new report is now required.

“We were right and, today, we’re vindicated in the sense that the Court of Appeal acted in excess of its jurisdiction. So, we’re extremely pleased that the court [has] set aside the Court of Appeal’s decision…we’re extremely pleased that they also set aside Lowenfield’s report,” he said.

The opposition leader now expects that the Guyana Elections Commission (GECOM) will prepare its report based on valid votes as determined by the Representation of the People Act, a process he said was outlined by the CCJ.

“Once you listen to [the CCJ’s ruling], you would recognise how strong this ruling has been and the clear guidance that it has set out to GECOM and to the chief elections officer as to how they must act,” Jagdeo said, adding:

“In the summary [of the CCJ ruling] it said that he [Lowenfield] needs to prepare the report in accordance with the instruction given to him by the Chair of GECOM, which is to use the recount data which shows a PPP victory.”

He also put forward that the APNU+AFC must deal with its allegations of electoral fraud through the means of an elections petition.

Meanwhile, former Attorney General Anil Nandall told the Newsroom that he is not surprised by the ruling of the CCJ and looks forward to a report from the elections commission which will lead to a new President being sworn in.

“We always knew that the Caribbean Court of Justice had jurisdiction in this particular case, because you simply can’t make up a case, try to fit it within a jurisdiction in a specialised court like the Court of Appeal, and expect it not to be appealable when the decision of the Court of Appeal ends up being a perversity,” he said.

On Wednesday, GECOM Commissioner Sase Gunraj also gave comments on the matter on his Facebook page. He stated that, according to the court, GECOM must now direct the CEO to provide a new report to the commission for its deliberation and declaration of the results.

Gunraj noted then that commissioners had already been formally invited by the GECOM Chair Justice (Ret’d) Claudette Singh to attend a meeting at the commission today at 13:30hrs.

“I expect, in short order, the chief elections officer will…provide that report in short order to the commission and the steps, here from, are very clear, pursuant to the ruling of the CCJ this afternoon. We must receive that report which is based on the results generated by the recount exercise and a declaration must flow naturally and speedily.”

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020

…President says CCJ did not issue coercive orders
…ball back in GECOM’s court

By Lisa Hamilton

PRESIDENT David Granger said on Wednesday that now that the Caribbean Court of Justice (CCJ) has ruled on Guyana’s elections matter, the ball has been placed back into the courts of the Elections Commission which is now expected to continue the process towards a final declaration with consideration to the “massive” electoral fraud uncovered during the elections.

Following the CCJ ruling yesterday, a group of supporters of the APNU+AFC gathered outside of State House and the President came out to speak with them. He said that, as far as the APNU+AFC is concerned, “massive” electoral fraud has been uncovered from the elections and his party will continue to fight to ensure that the valid votes of all eligible electors count.

“[The Caribbean Court of Justice] has made no coercive orders. That means they have not given any instructions to what GECOM is empowered under the laws of Guyana to do. So, we will have to assess the situation in which we are in now. The matter will go back to the Election Commission, but as far as we are concerned, we have evidence that there has been massive fraud and irregularities and we will continue the fight to make sure that your votes are counted,” he told supporters, who were pleased to hear the commitments.

On Wednesday, the CCJ, in assuming jurisdiction to hear an application filed by People’s Progressive Party Civic (PPP/C), set aside the decision of the Court of Appeal on the interpretation of the Constitution and invalidated the Elections Report submitted by the Chief Elections Officer (CEO), Keith Lowenfield. President of the CCJ, Justice Adrian Saunders, in handing down the decision, said while decisions made under Article 177 (4) are final as indicated by the Constitution and the Caribbean Court of Justice Act, the Court of Appeal had no jurisdiction to hear the application filed by Eslyn David.

David’s application, Justice Saunders said, was not based on the qualification of a President or interpretation of the Constitution, but rather the Order No. 60, which triggered the national recount. President Granger told the supporters that while this is the longest the country has ever had to wait for the completion of an election, it is important that not just any results are delivered to the people, but results which have credibility and represent the will of the electorate.

He urged them to be patient for a little while longer and as they await the decision of the commission. The President said: “Our party, our partnership and our coalition are committed to the rule of law. The CCJ has not allowed the position that our Court of Appeal has taken but it means that the matter will now have to go back to the Elections Commission. So, the matter is not closed, it now has to go back to the Election Commission. So, we still have to be patient. I know it’s been a long wait. We all went out on March 2, March passed, April passed, May passed, June passed and now we’re in July. It is the first time this has happened in the history of our country and it has happened because there are some bad elements out there who tried to manipulate the vote by having votes recorded for dead people; people who had migrated; more votes in a polling station than they had electors. We know all of the faults and our party, our partnership and our coalition has been bringing these complaints of abuses and irregularities to the attention of the public and also to the attention of the court.”

Meanwhile, Campaign Co-Chairman of the APNU+AFC, Joseph Harmon, said that now that the CCJ has ruled, it is expected that GECOM will continue with the necessary process, in keeping with the Constitution, which speaks to the requirement of valid votes.

“The end of this matter in the Caribbean Court of Justice, puts the matter back to GECOM for the final decisions to be made in the declaration and swearing in of our President. As we have said all along, our Constitution made provision for the actions taken by the Chief Elections Officer. We expect that GECOM, in its understanding of the court’s ruling, will stand firmly with the Constitution which is our Supreme law,” he stated.

Adding his voice to the matter also was APNU+AFC Executive, Aubrey Norton, who stated: “We believe GECOM must live by the law and, under the law, GECOM is expected to deliver on credible votes…if we focus only on tabulated votes we are going to be in a position where we are perpetuating fraud. We are not disposed to any government that will come into power by fraud and we expect that when the Guyana Elections Commission meets they will honor their own Order and in honoring that Order they will be obligated to ensure that what goes into that report is credible votes.” Commissioners of the Guyana Elections Commission (GECOM) are scheduled to meet today at 13:30 hours for deliberation on the decisions of the court.

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020

Dear editor,
Just when we thought it was safe to venture outside, here comes the Guyana Bar Association, slithering from under a PPP/C controlled rock with venom directed at the APNU+AFC. No surprises there. On this occasion, the mediocre LLBs came out in unsolicited defence of CCJ Judges who are far more effectual at legal defence by virtue of their superior legal standing.

And sat back we did, completely gobsmacked that this very Bharrat Association appeared to have lost their voices at critical times when provided with mountainous opportunities to reprimand their parent political party, PPP/C. Many wondered, included myself, if COVID-19 induced laryngitis had afflicted their vocal cords rendering them mute. For surely these events that played out over this past four months were impossible to miss. So desperate for divine intervention, the skies became our only hope. Hoping against hope that the discredited Bharrat Association would make those valued pronouncements on matters of national interest. But all we experience in those skies was the ultraviolet rays of the penetrating sun, burning our retinas. No Bharrat Association. No pronouncements from our legal dilettantes were forthcoming. And with their palpable absence we were left to deal with our psychological scars. Scar, which, were many.

And these scars were more painful for some but afflicted all. The Chairwoman of GECOM traumatised by daily death threats from the PPP/C. The retired judge lost her privacy as 24hrs armed police protection had to be provided. We waited and waited but no pronouncement from the Bharrat Association was forthcoming. Hell would have frozen over before their vocal cords were engaged. And yet another opportunity presented itself for their pronouncement. On this occasion the victims were the APNU+AFC Commissioners, who numbered three, were given a toxic dose of death threats from PPP/C. Snipers had to be placed on their roofs but sadly the Bharrat Association remained completely silent. The CEO of GECOM, a man made of steel as an army veteran, was also visited with death threats from PPP/C. He too needed protection to live another day but the Bharrat Association was silent. The Region Four returning officer was made the election punching bag by the PPP/C. He too required armed protection as the Bharrat Association remained mute under an unmarked rock. The PPP/C terroristic acts on the East Coast where young children and the police were attacked with many requiring hospitalisation, but that was not enough to gain the attention of the Bharrat Association. One of their fellow mediocre and equally obese LLBs made threats to two policewomen in the Ashmins building that was housing GECOM but yet again the Bharrat Association could not find their voices. During the recount at the ACCC, a PPP/C former minister allegedly assaulted a doctor trying to check his temperature but still our legal numbskulls remained invisible. Two of our Appeal Court Judges came under attack from PPP/C but silence was all we got from the Bharrat Association. But now the PPP/C has a dead on arrival case at the CCJ, the Bharrat Association awoke and come out in defence of the CCJ Judges for perceived verbal hostilities. Why?

And even as we sat in awe listening to sophisticated legal arguments emanating from the CCJ, a notable absence was our mediocre LLBs. They were rightly relegated to the dunce corner. Yes they were present but were relegated to the three groups of shame. The somnolence. The back seaters. The legal extras. For anyone with an iota of professional pride would have been concerned about the low status they have in the Caribbean. Not these cohort of political LLBs. They have accepted their role as the PPP/C political stooges. They care less about improving the standard of jurisprudence in the land of many waters. They are happy and contented to swim in their mediocrity. Guyana will forever have chicken thieves. Chicken thieves will forever need their services. Matters of the constitution are way beyond their intellectual capacities and they know that. This is a very sad state of affair. A very sad state of affair. So I pray the day will come where new breed of jurist will replace this bias and unambitious lot. This lot that continue to cause us nothing but international shame. Dr. Francis Alexis was birth in a small island with a population of approximately one hundred thousand, yet he is the region’s preeminent constitutional scholar. Who do we have to boast about? Just a collection of chicken thief lawyers. Well done the Guyana Bar Association. Well done!

Regards
Dr. Mark Devonish

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020

Dear Editor
Many have cast aspersions on the Chief Elections Officer (CEO) report presented to the GECOM Board. On June 13, 2020 when Mr. Lowenfield presented his report to GECOM stating in summary it cannot be ascertained the recount results meet a criteria of fair, credible elections, in keeping with the Recount Order. Those ready to jump down his throat said he must present an outcome or result. They argued that despite missing, supporting documentation (tantamount to fraud) to go with some 1300 ballot boxes, almost 55 per cent of the electorate, Mr. Lowenfield and GECOM cannot allow an annulment of the elections.  So on June 23, 2020, having been almost forced to produce a final result from the overall discredited report, the CEO produces a report based on his judgement, knowledge and experience what he believes to be realistic numbers, giving credibility to now about 75 per cent of the ballots. Those who clamored for a result, now switched to the other side of their mouths including Western Nations and other observers, and began discrediting this approach.

Almost simultaneously as the matter went through the courts, Court of Appeal and Caribbean Court of Justice, the very Western Diplomats, OAS, CARICOM Leaders, US Congressional and Senate members, and CARICOM Secretariat, seized upon the opportunity to cite the CARICOM Report as giving credibility to the elections recount process. However, the CARICOM Report is at best duplicitous; its Executive Summary differs from its recommendations, which then differs from its conclusions, even within themselves. Some of the main examples include:

EXECUTIVE SUMMARY
“Nothing they witnessed warrants a challenge to the inescapable conclusion that the recount results are acceptable and should constitute the basis of the declaration of results of the March 2, 2020 elections.”

RECOMMENDATIONS
“Yes, the recount suggests that the poll was far from perfect but the imperfections cannot deny that the elections and therefore the recount were reasonably credible.”

CONCLUSION
“It therefore, behoves whichever political party emerges victorious from these elections …”.
So if these external bodies and governments are asking GECOM to comply with the CARICOM Report to decide on a declaration, it remains completely unclear what GECOM has to do. Further, both main parties have speculated that the CCJ will likely return judgement in favour of GECOM itself deciding the next move. Given the various scenarios presented by the CARICOM Recount Report, the CEO’s Report and wide ranging powers of GECOM, it is my judgement that Lowenfield and GECOM Secretariat have the two options, one, annulling the results and setting a timeframe for new elections.
The other option, perhaps most realistic and credible in the unchartered circumstances we find ourselves in, is an interim declaration in favour of the current administration on the basis of the CEO’s initial submission on 13 June 2020 or 45 per cent of deemed credible results, APNU+AFC: 125,000 to PPP/C: 56,000. But, this declaration is conditional on a bi-election taking place within 12 months, for the remaining 55 per cent of the electorate deemed inadmissible at this time, with a fresh house-to-house registration process to arrive at a clean list. This will be helped by the fact that it was entire boxes or polling stations that were deemed fraudulent by the CEO. Such an approach will restore credibility to GECOM, alleviate the mounting tensions and massive fall out on both sides, which will likely have dire consequences to the country, its people and economy. And allow us all to breathe!

Regards
Krishna Persaud

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020

–  Attorney Mayo Robertson says CCJ maintained that the law demands valid votes for election declaration
–  says the Court did not invalidate country’s laws

By Lisa Hamilton

ATTORNEY-AT-LAW, Mayo Robertson, has stated that, while he is disappointed that the Caribbean Court of Justice (CCJ) ruled that it had jurisdiction over the Guyana elections case, he is pleased that the Court did not invalidate any of the country’s laws and has maintained that valid votes must be used to determine the elections results.

Robertson represented the first respondent in the case filed by People’s Progressive Party/Civic’s (PPP/C’s) General Secretary, Bharrat Jagdeo, and PPP/C’s Presidential Candidate, Irfaan Ali, before the CCJ, challenging the Court of Appeal’s decision to interpret Article 177 (2) of the Constitution to mean “more valid votes are cast”.

Shortly after the CCJ, in assuming jurisdiction to hear the application, set aside the Appellate Court’s decision and invalidated the Elections Report submitted by the Chief Elections Officer (CEO), Robertson appeared on a programme hosted by the APNU+AFC to give his comments.

“That was a little bit disappointing for us because we believe that we had presented a persuasive case to allow the Court to reach a different conclusion but we must not over play the effect of today’s ruling,” he advised.

“The Court has stood by its previous position that it cannot tell GECOM how to do its job. All the Court has said is that ‘the process must continue; we believe the Court of Appeal was wrong but the law in Guyana still stands’ and that law is that the CEO prepares his report and it’s only on the basis of that report that the declaration can be made. They invalidated the report that was presented earlier but that doesn’t mean that the declaration can proceed without a report. Another report has to be presented. So, I would suggest to our friends that they keep the champagne on ice for a little while.”

Robertson said that not only did the CCJ reject the invitation to make declarations about which party won or lost, but it did not interfere with the concept that “valid votes” must be the governing principle that the CEO uses to prepare his report.

Furthermore, he explained that given that the CCJ ruled that the Court of Appeal had no jurisdiction to hear the application filed by Eslyn David, it is therefore consistent with its ruling that the CEO’s report was set aside as it was premised on the decision of the Court of Appeal.

He stated: “My understanding is that the CCJ reaffirmed the concept of a valid vote and it is clear that our law requires the CEO to provide a report based on valid votes…the Court did not specifically say ‘x’ number of votes are valid or ‘y’ number of votes are valid. It simply said that the decision of the Court of Appeal was wrong so that the CEO’s report which was based on the Court’s decision should be set aside. It did not say that the CEO should not go and prepare a report based on valid votes and I fully expect that that is what he will do.”

The Attorney-at-Law said that while he would not be surprised if some would run with headlines today proclaiming victory, the process is not yet complete as the CEO has not yet submitted the necessary report and a declaration has not yet been made.
He said that what are needed is steady heads and hands to correctly analyze the official decision of the Court and to comply with the said decision.

“To the extent that the Court made a ruling, it’s not very much different from what we were seeking. Remember we went to the Court under [Article] 177 (4) to get the Court to agree that only valid votes could be used in the tabulation of the recount to make a decision as to who should be declared the President. The Court has confirmed that, only valid votes could be used,” he said.

“In addition, the Court has not changed our Constitution. The Court has certainly not suggested that the CEO does not have to prepare a report. He still has to prepare this report as required by the Constitution and it’s still only on the basis of that report that the Chair can then proceed with the declaration process. So, while the Court agreed to take jurisdiction, I don’t believe the result is earth-shaking because the Court did not disavow the concept that only valid votes could be used in the tabulation and the Court also reaffirmed the position of the CEO with respect to the report.”

Robertson also said that the national recount Order No. 60 has not been invalidated by the Court and the CEO must therefore take it into consideration in the presentation of his report. He advised the Guyanese public that while they may be disappointed with the decision of the CCJ to assume jurisdiction, the Court did not invalidate any of the country’s laws or processes.

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020

…throws out CEO report, assumes jurisdiction in elections matter

By Svetlana Marshall

THE Caribbean Court of Justice, in assuming jurisdiction to hear an application filed by People’s Progressive Party Civic (PPP/C), has set aside the decision of the Court of Appeal on the interpretation of the Constitution; and invalidated the Elections Report submitted by the Chief Elections Officer, Keith Lowenfield.
The judgment was handed down virtually on Wednesday (July 8) by President of the CCJ, Justice Adrian Saunders in the presence of Justice Jacob Wit, Justice Maureen Rajnauth-Lee, Justice Denys Barrow and Justice Peter Jamadar – all of whom formed part of the panel of judges that presided over the case filed by PPP/C’s General Secretary, Bharrat Jagdeo and Presidential Candidate, Irfaan Ali.

Justice Saunders, in handing down the judgement, said while decisions made under Article 177 (4) of the Constitution are final as indicated by the Constitution and the Caribbean Court of Justice Act, the Court of Appeal had no jurisdiction to hear the application filed by North Sophia voter, Eslyn David.
David, in a Notice of Motion, had asked the Court of Appeal to interpret the words “more votes are cast” in Article 177 (2) (b) of the Constitution, and by a two-one majority on June 22, the Appellate Court, in its ordinary jurisdiction under Article 177 (4), ordered that the words be interpreted to mean “more valid votes are cast.”

JURISDICTION
But the CCJ President said David’s application was not based on the qualification of a President or interpretation of the Constitution as required by Article 177 (4) but rather Order No. 60, which triggered the national recount.

“Article 177 (4) only affords jurisdiction to the Court of Appeal if the question raised as to the validity of an election of a president depends upon the qualification of any person for an election or on the interpretation of the Constitution,” Justice Saunders explained.

He added: “It is evident that from the nature of Ms David’s complaints and issues she placed before the Court of Appeal, that the questions raised by her, did not depend upon the qualification of any person for election or on the interpretation of the Constitution. Ms David’s complaint was really about the impact of Order 60, and about the conduct of GECOM; [and] what the Court of Appeal, majority did, did was to embark upon an exercise of interpreting Order 60.”

The CCJ President said that there was no need for the Court of Appeal to interpret Article 177 (2) (b) of the Constitution because it needs no interpretation.
“Article 177 (2) (b), in fact, requires no refinement. That article, in plain and simple language, has always said what it meant and meant what it said. There was no need for an interpretation of that article or any other article of the Constitution,” Justice Saunders said.

He made it clear that there was nothing in David’s application to trigger the Court of Appeal’s jurisdiction under Article 177 (4). “The Court of Appeal lacked jurisdiction to make the orders that were made. Those orders were not made under Article 177 (4) of the Constitution,” the CCJ President ruled.

While David’s Attorney, Senior Counsel John Jeremie had argued that Court of Appeal had interpreted the Constitution as provided for in Article 177 (4), such an argument did not sit well with the regional court on the basis that the concept of “valid votes” is well known to the legislative framework governing the electoral process. In support of the CCJ’s position, Justice Saunders pointed to the Section 96 of the Representation of the People Act that references to the phrase “valid votes” and in doing so calls on the Chief Election Officer to calculate ‘the total number of valid votes of electors which have been cast for each list of candidates.’

“Validity in this context means, and could only mean, those votes that, on their face, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid votes” count towards a determination of not only the members of the National Assembly but, incidentally as well, the various listed Presidential candidates,” Justice Saunders explained.

It was noted that if the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond the validation exercise, as was done by A Partnership for National Unity + Alliance For Change (APNU+AFC) Agent, Joseph Harmon, such could only be pursued under Article 163 of the Constitution by way of an Elections Petition within 28 days of the declaration of the results of the elections.

On the basis that the Court of Appeal had no jurisdiction to hear the case, the CCJ ruled that the finality clause in Article 177 (4) was inoperable, and as such, it had jurisdiction to hear and determine the application by Ali and Jagdeo.

ELECTIONS REPORT
Justice Saunders said the flawed interpretation of the Constitution by the Court of Appeal has resulted in an unlawful validation exercise by the Chief Elections Officer.
“By the unnecessary insertion, into Article 177 (2) (b), of the word “valid”, the Court of Appeal impliedly invited the CEO to engage, unilaterally, in a further and unlawful validation exercise trespassed on the exclusive jurisdiction of the High Court established by Article 163. It was inconsistent with the Constitutional framework for the CEO or GECOM to disenfranchise tens of thousands of electors in a seemingly nontransparent and arbitrary manner without the due processes established in Article 163 and the National Assembly (Validity of Elections) Act,” the CCJ President said.

The CCJ’s decision places the electoral process back into the hands of the Guyana Elections Commission (GECOM), and according to the apex court, it is now for GECOM to act. Justice Saunders, while invalidating the Elections Report which was submitted on June 23, said GECOM must ensure that the CEO submits a report in accordance with its directive of June 16, in an effort to proceed along the path directed by the laws of Guyana.

“As Guyana’s final court, we cannot, however, pretend to be oblivious to events that have transpired since December 2018. Indeed, we have had to pronounce on some of those events. It has been four months since the Elections were held and the country has been without a Parliament for well over a year. No one in Guyana would regard this as a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy. Now, the law must run its course,” the CCJ President said.

He noted that the court’s judgment was unanimous.

Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_09_2020

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