As we editorialised on Monday, it was the considered view of this publication that the Court of Appeal had jurisdiction to hear the matter brought by Eslyn David. We contended that GECOM has the power to make a declaration of the winner of the election based on the credible votes that resulted from the recount. It was not surprising to us then that the court in a 2-1 decision upheld arguments to this effect. The learned justices, in particular Justices Reynolds and Gregory, explored the pertinent sections of the constitution and the various submissions to arrive at their conclusions. They also relied on precedence to bolster their case.
The first argument they had to explore was the one which posited that Article 177 (4) gave the Appeal Court jurisdiction limited jurisdiction only on matters that have to do with an elected president. In other words, the article assumes that the President has already been elected. However, the court pointed to the qualification imperative in 177 (4) and argued that the substantive case before it has bearing on the qualification of the person seeking to be declared the President. The court in effect has ruled that the article should not be narrowly read. In this regard it agreed with the court’s ruling in the 1980 case Kwayana vs Shahabudeen where it employed a broader interpretation to allow hearing of Kwayana’s application.
A second argument the court had to overcome is whether the case should have been taken before the High Court. The court ruled that this was not the case since the High Court has jurisdiction over election to the National Assembly while the Court of appeal has original jurisdiction over matters of the presidency. Since the President is not a member of the National Assembly, the Court of Appeal would not in this instance be encroaching on the High Court’s territory. This distinction was highlighted by counsel for Eslyn David, John Jeremie.
This paved the way for the court to make the ruling on the substantive matter brought by Eslyn David. Ms. David had asked the court to find that “votes counted” in the constitution must be construed to mean valid votes. And that the Recount Order was explicit in its definition that a valid vote would be determined by the conditions set out in the order. The Order makes clear that valid votes would be those that can be reconciled by the necessary statutory documents. Since GECOM set itself the task of determining the credibility of the votes cast, it follows that valid votes must confirm to this standard.
The court’s ruling on Monday is a big blow to those who have argued that the PPP won the election and that its Presidential Candidate, Irfaan Ali should be declared the President. The advocates of this argument studiously downplayed or ignored the salience of the Recount Order. On the other hand, the Coalition must be breathing a sigh of relief, given the many setbacks it has suffered since March 2, 2020. This publication has argued in the past that decisions have consequences. When the PPP charged that Mr. Mingo did not tabulate the Region 4 votes correctly and opted to go to court, it obviously could not have envisaged this outcome. Is this the end of the road for the PPP? This has to be pondered as we await the next move. Counsel for the plaintiff have contended that the rules of the CCJ do not allow for an appeal of a matter of this nature. It is doubtful that the PPP would adhere to this reader. We shall see. But it is clear that for now GECOM chair would have to reverse her directive to the CEO.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_e-paper_6-23-2020