– SC Boston maintains CEO was correct to base report on declarations
…High Court to hand down ruling Monday
ARGUING that the Recount Order is invalid, Senior Counsel Neil Boston – the attorney representing the Chief Elections Officer (CEO), Keith Lowenfield – said that the Guyana Elections Commission (GECOM), using Order No. 60, illegally clothed itself with the authority to resolve an elections dispute which stemmed from allegations of electoral fraud that arose days after the General and Regional Elections were held.
In his virtual appearance before Chief Justice Roxane George-Wiltshire in the High Court in the case – Misenga Jones v the Guyana Elections Commission (GECOM) – Boston said the Elections Commission, while relying on Article 162 of the Constitution and Section 22 of the Election Law (Amendment) Act to bring Order No. 60 into effect, overstepped its boundaries and in effect usurped the jurisdiction of the High Court as provided for in Article 163 of the Constitution.
In laying the foundation of his argument, the Senior Counsel said while the Court of Appeal, in the Ulita Moore Case, ruled on April 5, 2020 on the constitutionality of a recount, it never adjudicated on Order No. 60. Order No. 60 or the Recount Order was the “legal tool” used by the Elections Commission to facilitate the National Recount conducted in May-June.
Boston drew attention to the fact that Order No. 60 came into effect approximately one month after the Appellate Court had handed down its judgment. GECOM had gazetted Order No. 60 on May 4, 2020.
“So the Court of Appeal never had the opportunity to consider whether Order 60, which was born out of the womb of Section 22 [of the Election Law (Amendment) Act] was still birth or dead on arrival. The Court of Appeal did not consider that, the Court of Appeal was considering an argument on whether it was constitutional,” Boston said as a matter of record.
For him, Order No. 60 is “stillbirth” on the basis that it attempts to trespass on the powers of the High Court. According to Article 163 of the Constitution, the High Court has exclusive jurisdiction to determine whether an election has been lawfully conducted or the result thereof has been or may have been, affected by any unlawful act or omission.
“What Order 60 came on stream for is to give GECOM, the unlawful power to resolve elections dispute, which Article 163 as put it in the exclusive jurisdiction of the Elections Court,” Boston told the Court. In support of his argument, he referenced the affidavit tendered by the General Secretary of the People’s Progressive Party/Civic (PPP/C), Bharrat Jagdeo, in which the origin of the electoral “dispute” was addressed.
It was the PPP/C, through the late Reeaz Holladar, had first moved to the High Court over an allegation that the Region Four Returning Officer, Clairmont Mingo was using a spreadsheet as against the required Statements of Poll for the tabulation of the votes cast in that District. And even after there was reported compliance after the first declaration was invalidated, the PPP/C maintained that the figures were altered, and it was on the basis of that allegation of electoral fraud that the Guyana Elections Commission opted to facilitate the National Recount to determine a “final credible count.”
Boston told the Court that it cannot turn a blind eye to the facts surrounding the case, in particular issues that led to the National Recount. “If one looks at the preamble in the Order, it speaks of disputes. It speaks of disputes,” he argued.
Further, Boston submitted that GECOM, using Order No. 60, created a new electoral regime in contradiction to the Representation of the People Act, and most importantly the Constitution. Citing an example, he pointed out that Section 84 of the Representation of the People Act dictates that once a declaration is made, and a request for a recount is denied, the declaration becomes final. He said though the Elections Commission embarked on an illegal venture, the declarations made by the 10 Returning Officers are final and cannot be set aside by the Chairman of GECOM nor her Commission. Boston reminded the High Court that Order No. 60 is a subsidiary legislation, and therefore has little or no effect on Acts of Parliament and/ or the Constitution.
“The true will of the electorate was already determined by the certified copies of the votes remitted by the 10 regional officers to the CEO; that represents the true will of the people…It is only an elections court can determine whether the contents of those reports that were sent by the ROs from the 10 Regions to the CEO were not the true will of the Electorate,” Boston told the Chief Justice.
Trinidad and Tobago’s Senior Counsel John Jeremie, who appeared on behalf of the applicant Misenga Jones, also put forward similar lines of argument. He told the Court that the Caribbean Court of Justice (CCJ) in the case – Bharrat Jagdeo and Irfaan Ali v Eslyn David – warned against the creation of a new electoral regime. Like Boston, Jeremie told the Court Order No. 60 is null, void and of no effect. Further, he submitted that the declarations made by the Returning Officers in the 10 Electoral Districts are final and the Elections Commission has no authority to invalidate them. He submitted that the electoral procedures outlined in the Representation of the People Act and Article 177 (2) (b) of the Constitution are clear and cannot be altered or impacted by a subsidiary legislation such as Order No. 60.
But while Boston and Jeremie throughout their arguments submitted that Order No 60 and by extension the National Recount are illegal, Kim Kyte-Thomas – the Attorney representing the Chairman of the Elections Commission, Justice (Ret’d) Claudette Singh – argued that the Order is a valid legal instrument created using Article 162 of the Constitution and Section 22 of the Election Law (Amendment) Act.
But before addressing the primary issue of the validity of the Recount Order, Kyte-Thomas submitted to the Court that it had no jurisdiction to hear the case brought by Jones based on the grounds that the matters contained therein are for an Elections Court under Article 163 of the Constitution and the National Assembly (Validity of Elections) Act.
Kyte-Thomas told the High Court that the Caribbean Court of Justice (CCJ) in the case – Irfaan Ali and Bharrat Jagdeo v Eslyn David and others stated clearly that electoral disputes are matters for the High Court under Article 163 of the Constitution. Turning her attention to the issue of the validity of Order No. 60, Kyte-Thomas submitted that the entire judgment issued by the CCJ on July 8 in the case brought by Ali and Jagdeo ought to be read as a whole. “You cannot pick out or cherry-pick certain parts to misconstrue and base submissions on,” the former Solicitor General said.
Alluding to paragraph 15 of the CCJ judgment, Kyte-Thomas said reference was made to the decision of the Court of Appeal, and in doing so, the apex court found that Order No. 60 could not have created a “new elections regime,” on the grounds that elementary or subsidiary law could not have amended the Constitution. “Those observations were a direct response to the decision of the Court of Appeal to read Order No 60 in a particular way as amending the Constitution,” she posited while also pointing the Court to Article 8 of the Constitution.
Kyte-Thomas ruled out the argument that GECOM, in utilising Order No. 60, had breached the Constitution and overstepped its boundaries. “GECOM at no stage intended or set out to usurp, trample, trespass or somehow take upon itself the clear provisions of Article 163 of the Constitution; that was never the intention of Order No. 60. The aim of Order No. 60 was simply to produce a final credible count of the votes of the March 2020 Elections,” Kyte-Thomas told the Court.
According to her, Order No. 60 and by extension the National Recount was endorsed by the CCJ. Maintaining that the High Court had no jurisdiction to hear the case, the Legal Counsel invited the Court to throw the case out. Trinidad and Tobago’s Senior Counsel Douglas Mendes, who appeared on behalf of the PPP/C General Secretary Bharrat Jagdeo and Presidential Irfaan Ali, also argued that the High Court had no jurisdiction to hear the case brought by Jones. Further, like Kyte-Thomas, he argued that Order No. 60 is legal. Rejecting the notion that Order No. 60 allows for the usurpation of the High Court’s jurisdiction by the Elections Commission, Mendes explained that the Order was made against the backdrop of requests made for recounts in a number of electoral districts but were rejected, aborted or held in abeyance. “It was also made against the backdrop of an agreement made by all contesting parties for a total recount of all electoral districts “as a means of assuaging the contesting parties and determining a final credible count,” Mendes had explained in his written submission. He submitted to the Court that GECOM cannot revert to the old declarations, and must use the recount data for the declaration of the elections results. On Monday, July 20, 2020 the Chief Justice Roxane George-Wiltshire will hand down her decision in the case seeking to compel the Elections Commission to declare the results of the elections based on the Declarations made by the Returning Officers and not the National Recount.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_18_2020