Jul 21, 2020
– AG, Jones, Lowenfield submissions “hopelessly flawed”
– Lowenfield cannot be a lone ranger, is bound by law and directions of GECOM – Chief Justice(ag)
By Rehanna Ramsay
Chief Justice (Ag), Roxane George -Wiltshire has dismissed the latest application filed to compel the Guyana Elections Commission (GECOM) to rely on nothing but disputed figures to make the final election’s declarations.
The case filed by Misenga Jones, a Counting Agent for A Partnership for National Unity +Alliance For Change (APNU +AFC), was thrown out after the Chief Justice (CJ) determined five main issues raised by her application.
Jones had petitioned the High Court for several orders, among them a declaration to prevent the Chief Elections Officer (CEO) Keith Lowenfield from using the recount figures, which show a victory for the Opposition People’s Progressive Party Civic (PPP/C) over the incumbent APNU+AFC.
The APNU +AFC counting agent wanted the Court to make a declaration that the CEO could instead use nothing but a report based on the March 13 district declarations as the basis on which a final election declaration would be made.
That report with the fraudulent March 13 declarations made by Region Four Returning Officer, Clairmont Mingo, has been rejected by the GECOM Chair, retired Justice Claudette Singh.
In her ruling yesterday, the CJ determined the figures derived from the recount of the March 2, 2020 Regional and General Elections are valid and unless overturned by a Court in an election petition, it is the only data that could be used for the declaration.
Justice George-Wiltshire stated too that the previous ten declarations cannot be “resurrected”.
At several points in her ruling, the CJ stressed the issues outlined in the application breached the principles of res judicata which essentially meant that the issues outlined in the application were already considered and determined by a court of competent jurisdiction and therefore should not be further pursued by the parties in a similar course of litigation.
Justice George-Wiltshire specified that the issues of Jones’ application has already been dealt with by the Caribbean Court of Justice (CCJ) and Court of Appeal (CoA) and as such could not be otherwise determined by the High Court.
The judge said that the High Court is also bound by the rulings the CCJ and CoA—both competent Courts of higher jurisdictions.
NARROW JURISDICTION
Prior to her pronouncements on the merits, the Chief Justice (Ag) determined that the High Court had the Jurisdiction to hear the case.
Noting that the crux of Jones’ application is that GECOM‘s officers breached Article 177 (2) (b) of the Constitution in the conduct of their duties in a public office, the CJ said that their actions can be subject to judicial review.
She said on this premise the Court has “a narrow jurisdiction” to interpret the Constitution and determine whether the Chairperson, GECOM and the CEO are acting lawfully.
Cognizant of the restrictions imposed on the court by Section 140 of the Representation of the People Act (RoPA), and by Article 163 of the Constitution, which would require an approach to the court by way of election petition, the CJ stressed that where there is an impasse regarding the decision-making of GECOM to complete the elections process, judicial review is necessary to advance this process.
“It is in this context that there can be judicial review of their decisions… Thus, on this narrow basis, it is an enquiry into the legal framework that guides the carrying out of their functions to complete the elections process…,” she added.
HOPELESSLY FLAWED
In a closer examination of the case, the CJ said that it is her view that the submissions made on behalf of Jones, the CEO and the Attorney General (AG) Basil Williams were “hopelessly flawed”.
She noted that, in their submissions, all three parties contended that the Section 22 of the Elections Laws (Amendment) Act, No. 15 of 2000 was unconstitutional and based their arguments on a ruling by the CoA.
In this regard, she stressed that the submission on behalf of the applicant, that the CoA’s decision on Section 22 is obiter dicta, cannot be accepted.
The Judge said the decision of the CoA on Section 22 cannot be considered to be obiter dicta or a passing statement or comment as the pronouncement of the CoA was a definitive and considered finding based on a point that was clearly argued.
She added, “The CoA having pronounced that a challenge to the constitutionality of Section 22 would be for an election petition, the principles of res judicata apply.”
“So the issue having been raised and importantly dealt with by the Court, it cannot be canvassed again. And even more importantly, since it is a decision of an appellate court, sitting as I am in the High Court, I am bound to follow this decision.
“I can discern no distinguishing feature that would permit me to depart from this judgment; nor has any evidence been disclosed on the affidavits by and/or on behalf of the applicant such as to permit me to do so,” Justice George -Wiltshire said.
Further, she concluded that a holistic review of the CCJ judgment in Ali versus David and others supports the contention by the Chairperson and the added respondents that this issue is indeed res judicata.
“Thus, the interpretation of the CCJ decision by the applicant, the CEO and the AG is hopelessly flawed. The CCJ judgment lends to the ineluctable conclusion that the recount votes are ex facie valid.
Hence, the view expressed that any irregularities would have to be addressed via an election petition,” she said.
DUTY BOUND
Additionally, in relation to the argument that Lowenfield should be allowed to present a report to GECOM based on nothing else but the reliance on the declarations of the ten Returning Officers (R.Os), the Judge referred to the interpretation of the CCJ decision regarding Order 60 that it is to provide an open, transparent, and accountable recount of all the votes cast in those elections.
Further quoting Section 18 of the Elections Act, the Judge noted, “the CEO and the Commissioner of Registration shall notwithstanding anything in any written law, be subject to the direction and control of the Commission.”
She emphasized that the fact remains that the circumstances surrounding the declaration of results of the March 2, 2020 elections are contextual.
“As just concluded,” she stated, “given the decisions of the CoA and the CCJ, the recount cannot be considered to be invalidated, at least not at this point in time. In this context, the Section 84 (1) declarations can no longer be considered useful. Hence, while the CEO may be expected to act independently, he cannot be a ‘lone ranger’ so to speak.”
The CJ therefore noted that she does not agree with the submission that the CEO has a constitutional mandate under Article 177.
“It is the Chairperson and GECOM that have the constitutional mandate. The CEO is a functionary of GECOM pursuant to Article 161 and Sections 2 and 7 of the RoPA,” she added.
RES JUDICATA
According to the CJ, res judicata is a legal principle that speaks to ensuring finality in litigation.
She explained that the doctrine of res judicata applies where a matter has been adjudicated on by a competent court so that the matter cannot be re-litigated.
Importantly, she noted as submitted by the Chairperson and added respondents, the Court had to consider that the application of similar nature in Moore, as well as Holladar before them.
“As is well known,” she reasoned, “the principle of res judicata is intended to give finality to judicial decisions.”
She said that it is her view that there must be finality to judicial decisions.
According to Justice George-Wiltshire, “Myriad persons cannot be permitted to engage the court with multiple applications regarding the same issue which has been decided, and shield behind the claim that they were not a party to the previous proceedings.”
To so permit, she said would be to waste precious judicial time and resources.
“In short order – this cannot be allowed,” she proclaimed.
“The reliefs sought are all based on issues that have been litigated previously and determined by Courts that take precedence over this High Court. Apart from res judicata, under the common law system, applying the principle of stare decisis, I am bound to follow the decisions of the CoA and ultimately the apex court, the CCJ,” the Chief Justice added.
By the end of the ruling, Jones’ lawyer Roysdale Forde indicated their intention to appeal the decision to the Court of Appeal. He said that the appeal will be filed by the end of today.