By Basil Williams, Attorney General
Issue:
THE issue to be determined is whether the Guyana Elections Commission may make a declaration annulling the elections held on March 2nd, 2020 on the basis that is has been plagued by irregularities and fraud.
Law:
This issue can be answered in the affirmative. The case of Mohinder Singh Gill and Anr. Vrs. Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 is instructive on this issue. In this case, the Court had to determine the amplitude of powers and width of functions to be exercised by the Election Commission under Article 324 of The Constitution Of India 1949 and whether such power included the power to cancel poll in the entire constituency. The Court held answered this issue in the affirmative and stated thus:
“The Chief Election commissioner has thus to pass appropriate orders on receipt of reports from the returning officer with regard to any situation arising in the course of an election and power cannot be denied to him to pass appropriate orders. Moreover, the power has to be exercised with promptitude. Whether an order passed is wrong. arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in him if it is there either under the Act or the rules made in that behalf, or under Article 324(1)…. The Commission is, therefore, entitled to exercise certain powers under Article 324 itself, on its own right, in an area not covered by the Acts and the rules
It is clear even from section 58 and section 64A that the legislature envisaged the necessity for the cancellation of poll and ordering of repoll in particular polling stations where situation may warrant such a course. When provision is made in the Act to deal with situations arising in a particular polling stage it cannot be said that if a general situation arises whereby numerous polling stations may witness serious mal-practices affecting the purity of the electoral process, that power can be denied to the Election Commission to take an appropriate decision. The fact that a particular Chief Election Commissioner may take certain decisions unlawfully, arbitrarily or with ulterior motive or in mala fide exercise of power, is not the test in such a case. The question always relates to the existence of power and not the mode of exercise of power. Although section 58 and section 64A mention “a polling station” or “a place fixed for the poll” it may, where necessary, embrace multiple polling stations.
It is true that in exercise of powers under Article 324(1) the Election Commission cannot do something impinging upon the power of the President in making the notification under section 14 of the Act. But after the notification has been issued by the President, the entire electoral process is in the charge of the Election Commission and the Commission is exclusively responsible for the conduct of the election without reference to any outside agency. We do not find any limitation in Article 324(1) from which it can be held that where the law made under Article 32 / or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. We are clearly of opinion that the Election Commission is competent in an appropriate case to order repoll of an entire constituency where necessary. It will be an exercise of power within the ambit of its functions tinder Article 324, The submission that there is complete lack of power to make the impugned order under Article 324 is devoid of substance.”
The more recent case of Jay Shankar Pathak v The Election Commissioner No. 1801 of 2012 is also instructive. In this case, the petitioner alleged that the action of the respondent– Elections Commission– in cancelling the entire process of election on the allegation of use of money and horse trading and on certain irregularity committed by the three voters during the process of casting their votes, as recommended for cancelling of the election process itself, wholly without jurisdiction and is bad. The Court held at paras 26 and 27:
“In our opinion, the Election Commission did what the Hon’ble Supreme Court expects from high functionary authority like Election Commission that, even if the law and the rules are absent even then if Election Commission comes across such a situation and he is to tackle that situation, then he should not remain with folded hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situations…
27. In these cases, we are of the considered opinion that the Election Commission has acted befitting to its office by taking extraordinary steps of stopping the counting promptly and stopping the result of the poll and forthwith recommended for rescinding the election notification to Her Excellency the President of India.”
Free and fair elections are the very foundation of democratic institutions. This was stated in Rampakavi Rayappa Belagali – Vs – B.D.Jatti & Others reported in 1970 (3) SCC 147.
‘Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done, but must also seem to be done; similarly, elections should not only be fairly and properly held, but also seem to be so conducted as to inspire confidence in the mind of the electors that everything has been done above board and has been done to ensure free elections.’
In light of the foregoing, it is respectfully submitted that the Guyana Elections Commissioner, in the execution of their duties to ensure free and fair elections that yield results that are a true reflection of the will of the people, may exercise the power to order the annulment of elections in the face of anomalies, irregularities and fraud. To ignore evidence of corruption and proceed with a declaration would be to undermine the integrity of the Commission and erode public confidence in the electoral process.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_06_18_2020