THE Court of Appeal will today hand down its ruling in the election declaration challenge brought by lawyers for APNU+AFC supporter, Eslyn David.
The court would have to first determine whether it has jurisdiction to hear the case. Lawyers for the PPP and GECOM chair, Justice Claudette Singh, have contended that the Court of Appeal does not have such jurisdiction given that Article 177 (4) assumes that a president must first be elected before the court can entertain such a case. But the lawyers for Eslyn David and the Attorney General rejected that interpretation by arguing that the Court of Appeal has jurisdiction to hear any matter that has to do with the qualification of the president.
John Jeremie ,Counsel for Eslyn David, cited as justification for his position the Eusi Kwayana case (1980) when the Court of Appeal agreed to hear Kwayana’s application challenging the oath taken by President Burnham. According to Jeremie, “Parliament does not legislate in vain. The exclusive jurisdiction to interpret the Constitution in accordance with Article 177 (4) is afforded to the Court of Appeal and the Court of Appeal alone. There is no similar provision granting the same jurisdiction to the High Court acting as an election court.”
This publication is swayed by the submissions that the Court of Appeal does have jurisdiction to hear this case. It is our view that given the fact that the matter at hand has to do with the validity of votes to determine the declaration of the president, it does confirm to the “qualification” mandate of Article 177 (4). Further, Mr. Jeremie’s distinction between the expressed powers of the High Court and those of the Court of Appeal as they relate to elections is very compelling.
The substantive matter before the Court has to do with the standing of the Recount Order which was gazetted by GECOM to effect the recently concluded recount. Ms. David is challenging the order by the GECOM chair to compel the Chief Elections Officer to produce a report that ignores the observation report of the said recount. The court must rule on whether the Chairman can choose to ignore the Recount Order.
Counsel for the Chair has virtually abandoned the Recount Order by maintaining that the Constitution is the supreme law and as such the court must put little store on the order. We find that argument to be very unconvincing and perhaps dishonest. The Recount order came as a result of a constitutional imperative. It was justified by Article 162 (b) which states that the elections commission “shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.”
Consistent with the article cited above GECOM chair justified the Recount Order this way: “Thus , once there is evidence that the electoral process was compromised, then to ensure impartiality, fairness and compliance with the constitution, the commission is constitutionally mandated to intervene to ensure public confidence in the electoral process.”
It is therefore the height of inconsistency to now argue that the Recount Order has no constitutional standing. We believe it does and the chair is thus compelled to heed its findings in determining the outcome of the election. The lawyers for the PPP and GECOM chair are conveniently running away from the fact that the Recount Order is the elephant in the room. It cannot be wished away. And no amount of sheltering under the constitution would suffice. We await the verdict of the court.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_06_22_2020