…Justice Holder says court has no jurisdiction to hear case
By Svetlana Marshall
HIGH Court Judge Franklin Holder on Tuesday ruled that the Court has no jurisdiction to hear an application filed by Leader of the Opposition Bharrat Jagdeo and Reeaz Holladar to set aside the second declaration made by Region Four Returning Officer Clairmont Mingo.
In his declaration on March 13, Mingo announced that the A Partnership for National Unity + Alliance for Change (APNU+AFC) secured 136, 057 votes in District 4 (Demerara-Mahaica) in the General Elections, while the People’s Progressive Party/Civic (PPP/C) secured 77, 231 votes. Jagdeo and Holladar, in their application, contended that, based on Statements of Poll (SOPs) in their possession, the declaration made by the Region 4 Returning Officer was flawed. However, Chief Elections Officer Keith Lowenfield, one of the respondents in the matter, challenged the Court’s jurisdiction to hear the application.
Justice Holder, in handing down his decision, said the core issues raised in the application touch on matters provided for in Article 163 (1) of the Constitution, and as such, ought to be dealt with by way of an Elections Petition pursuant to Section 3 of the National Assembly (Validity of Elections) Act.
According to Article 163 (1) (b) (i), the High Court has exclusive jurisdiction to determine any question on whether, “either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission.”
However, Justice Holder noted that Judicial Review could occur in restrictive matters, as in the case of Reeaz Holladar v the Region Four Returning Officer Clairmont Mingo, in which the High Court established jurisdiction, and subsequently ruled, on March 11, that the Returning Officer had failed to comply with Section 84 (1) of the Representation of the People Act when he tabulated the votes for his Electoral District.
IN NON-COMPLIANCE
In the lead-up to his first declaration, on March 5, Mingo had failed to tabulate the SOPs in the presence of persons entitled to be there, and as such was found to be in non-compliance with Section 84 of the Representation of the People Act.
In turning his attention to the case brought by Jagdeo and Holladar, Justice Holder said that based on documents tendered before the Court, Mingo subsequently took the necessary steps to comply with the ruling of the Court, and more importantly Section 84.
He said that as of Tuesday, March 31, 2020, there was no evidence before the Court stating that the Region Four Returning Officer breached the High Court Order handed down by Chief Justice Roxane George-Wiltshire.
As such, he maintained that the challenge to the validity of the declaration made by Mingo on March 13 is a matter for an Elections Petition. On those grounds, he ruled that the court had no jurisdiction to entertain the case, and that the challenge must be brought by way of an Elections Petition after the declaration of the results by GECOM.
Outside of the High Court, Senior Counsel Neil Boston, the attorney representing Chief Elections Officer (CEO) Keith Lowenfield told reporters that he was satisfied with the decision of the High Court. “It is an issue for an Elections Petition, because there is a dispute as to whether Jagdeo’s figure of 114,000-plus for APNU, and 80,000-plus for PPP conflicts with that of Mingo’s 136,057 [for APNU+AFC], and that could only be resolved by an Elections Court when an Elections Petition is filed,” Boston said.
He said that based on Mingo’s declaration, which was the last of 10 declarations made, the APNU+AFC has won the General Elections. However, given the ruling of the Full Court earlier that day that the Court has no jurisdiction at this stage to set aside a decision of the Elections Commission to facilitate a recount, Boston said GECOM will now have to determine whether it will declare the results of the Elections, based on the report submitted by the Chief Elections Officer, or facilitate the National Recount of all the votes cast at the March 2, 2020 Elections, as agreed by President Granger and the Leader of the Opposition.
‘A VERY STRANGE DECISION’
Jagdeo and Holladar’s attorney, Anil Nandlall, expressed dissatisfaction with the ruling. “It is a very strange decision because, first of all, Justice Holder, in an identical Judicial Review proceedings, gave himself jurisdiction and granted three injunctions; that is what he did in the Ulita Moore matter, and suddenly he lost jurisdiction, so that part I don’t understand,” Nandlall told reporters.
Nandlall said his client has not yet decided whether he will appeal the case. “We don’t need to if the recount will be done in accordance with the Chairperson [of GECOM]’s commitment… We don’t want to keep the matter in the court, when the solution to this issue lies outside of the court,” he said.
It is likely that the Elections Commission will meet today to determine the way forward.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_e-paper_01_04_2020