- Jones’ Attorneys contend
–maintain recount order invalid, March declarations must be upheld
By Svetlana Marshall
THE Recount Order, order No. 60, was never challenged in the Courts prior to July 14, but now that it bas, it most he invalidated on the grounds that it created a 11tw electoral regime in breach of the Constitution and Representation of the People Act, Misenga ,Jones’ Lawyers are arguing in their quest to have the Court of Appeal overturn the ruling of the High Court.
In dismissing Jones’ application in the High Court Chief Justice (ag) Roxane George-Wiltshire ruled that the primary issues raised were res judicata, having being addressed at both the Court of Appeal and the Caribbean Co un of Justice (CCJ), but the battery of lawyers representing Jones are saying that the decision was had in law.
Trinidad and Tobago Senior Counsel John Jeremie, Jones’ lead attorney, says that the issue of res judicata was the most significant reason why the High Court erred in not granting the relief sough in the Fixed-Date Application (FDA) filed by Jones.
ln laying the foundation of his argument, Jeremie pointed to the case of Garraway v Williams (2011), in which the CCJ ruled that for a successful plea of res judicata, three conditions must be met, namely: There must be an earlier decision covering the issue; there must be a final decision on the merits of that issue and thirdly, the earlier suit must involve the same parties or parties in privity with the original parties. Further reference was made to Pinnock Bros v Lew is and Peat Ltd ( 1923), and The Sennar (No. 2) [ 1885].
“The validity of Order No. 60 was never raised in and or dealt with by any Court before;· Jeremie told the Appellate Court in the group’s written submission, even as he pointed to the fact that the Ulita Moore Case predated Order No. 60, and never frontally examined Section 22 of the Election Laws (Amendment) Act. It was Section 22 of the Elections law (Amendment) Act that the Guyana Elections Commission (GECOM) used, together with Article 162 of the Constitution, to bring Order 60 into effect on May 4 He submitted that Section 22 was addressed as a juris dictional point, but not in the context of having to address the now live issue of the impasse between the Guyana Elections Commission (GECOM) and the Chairman of the Elections Commission, Justice (Ret’d) Claudette Singh and the Chief Elections Officer (CEO), Keith Lowenfield, the first, second and third respondents in the case respectively.
Maintaining that Section 22 was not res judicata, Jeremie further argued that the High Court misinterpreted the language of the Court of Appeal in the Ulita Moore Case. Turning his attention to the Eslyn David Case, in both die Court of Appeal and the Caribbean Court of Justice, the Senior Counsel pointed out that the primary issue was the interpretation of the Constitution and jurisdiction of the Appellate Court.
“While the CCJ addressed Order 60 generally, it cannot be said that there was ever a, decision on the merits of the validity of Order 60, in the words of The Sennar (supra). Absolutely nowhere in the CCJ’s judgement is there the mention of Section 22 of the Election Laws (Amendment) Act, or consideration of any merits on the validity of Order 60. Therefore, the Court was wrong to hold that the CCJ’s decision validated or It endorsed Order 60,” Jeremie argued.
He made it clear that Jones’ primary concern relates to the respondents breach of their public duty, and the unconstitutional exercise of powers under Article 162 of the Constitution and Section 22 of the Election Laws (Amendment) Act.
SECTION22 UNCONSTITUTIONAL
Zeroing in on Section 22, the Trinidadian Senior Counsel submitted to the Appellate Court that the law was constitutional, and on that basis, Order No 60 is in valid and of no effect. “The Appellant’s challenge to Section 22 of the Elections Law (Amendment) Act is not one seeking declarations as to the validity of the elections, as in Petrie and Seecomar Singh, but rather it is a challenge to the breach of the legal process or procedure for the conduct of the March 2, 2020 elections in accordance with Holladar and Moore,” he explained.
In the High Court, it was said that addressing the constitutionality of Section 22 during an ongoing electoral process would be disruptive, but Jeremie said such argument cannot be maintained. He put it to the Court that it was the unconstitutional reliance and use of Section 22 that disrupted the smooth progress of the election, and that it ought to be addressed now to allow for compliance with the Constitution and the Representation of the People Act.
Reminding the Appellate Court that the 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,” Jeremie said a core justiciable and enforceable doctrine found within the very Constitution is that of separation of powers between the three organs of the Government. He said that while the Constitution reposes the power to make, amend and repeal laws solely in Parliament, Section 22 of Election Laws (Amendment) Act confer upon GECOM a wide, unfettered and unregulated discretion to make laws which are ultra vires the Constitution and contrary to the rule of law.
“Section 22 tramples upon the separation of powers doctrine by conferring on GECOM an arbitrary law-making power to make, amend and repeal primary legislation by mere order,” Jeremie argued.
He added: “GECOM’s purported exercise of its Article I 62 and Section 22 powers are not saved from judicial review. This is particularly so where the purported delegation and exercise of that power are in excess of jurisdiction, and inconsistent with the Constitution and the Representation of the People Act … The delegation of power to GECOM to modify existing Acts of Parliament related to elections is undeniably unconstitutional.
Jeremie told the Appellate Court that the Elections Commission breached Article 163 of the Constitution, and is now demanding that the CEO act on that breach and depart from the correct process as outlined in Section% of U1e Representation of the People Act.
“‘It is important to note that the application of Section 22 by GECOM to conduct a recount related not to mere procedural matters but substantive ones which were for an election court under Article 163. Order 60 breaches the Constitution and the Rep resentation of the People Act by its unconstitutional establishment of a dispute resolution process that it is contrary to the Representation of the People Act, which excluded the statutory officers, that is to say, the Returning Officers from the recount process and adjusted the validity of the votes already declared by the RO’s which affected declaration of the counts,” he argued.
ROS’ DECLARATION VALID
The Chief Justice, in her ruling, said d1at the I O Declarations made by the Returning Officers (ROs) in March had been overtaken by events, and as such could be of no use at this stage of the electoral process, but Jeremie told the Appellate Court that those declarations cannot be set aside. Such, he posited would be a violation of the Representa1ion of the People Act, pointing to the case of West v Groynne and Smith v Callander.
“Under Article 162( I), GECOM is required to exercise its functions subject to the Constitution, and subject to the Representation of the People Act GECOM cannot defy the law contained in the Representation of the People Act and Article 163 of the Constitution, even if armed by Section 22 and Article 162. There is a clear process set out for the declaration of results which GECOM is bound to follow, failing which it is amenable and subject to judicial review as the Appellant asks,” he argued. He further submitted that under Section 84 of the Representation of the People Act, the declarations made by the Returning Officers are final, and as such cannot be set aside. He also argued that the Elections Commission must adhere to the advice given by the Chief Elections Officer, and it is not for GECOM or its Chairman to dictate how the Elections Report should be compiled.
,Jeremie appeared in as sudation with Senior Counsel Ruysdael Forde and Attorneys-at-Law Mayo Robertson and Rondelle Keller.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_24_2020