GECOM must determine “more valid votes cast” to elect President

By Guyana Times,

The Appeal Court in a 2:1 decision has determined that it has jurisdiction to interpret Article 177 (4) of the Constitution of Guyana which it claims, speaks to the election of a President when the interpretation of the Constitution is being invoked but the Guyana Elections Commission (GECOM) must determine “if more valid votes are cast” for a list.

This decision was made by both High Court Judge, Justice Brassington Reynolds and Appeal Court President Justice Dawn Gregory; however, Appeal Court Judge Justice Rishi Persaud had ruled that the Appeal Court has no jurisdiction to address the claim of the plaintiff. None of the Judges granted the application for an injunction to block GECOM’s declaration but rather has granted a three-day stay on its orders.

This means that GECOM’s Chairperson, Retired Justice Claudette Singh could go ahead with her request for the final elections report as it is the Commission that decides what are the “valid votes” cast at the March 2, 2020 elections.The case, brought by A Partnership for National Unity/Alliance For Change (APNU/AFC) supporter, Eslyn David sought several reliefs under Article 177 (4) of the Constitution and among them, it included the question as to whether “more votes are cast” in Article 177 (2) (b) can be determined as “more valid votes.”

Justice Persaud in his ruling stated David is, in essence, contending that the order required the determination that the elections were credible and ultimately urged the court to pronounce.

“I have perused the various pieces of legislation that governs the elections process and powers of GECOM and I am unable to find any provision which even suggest that GECOM is empowered to embark on what would be an evidential case of credibility exercise and by extensions annul an elections process. That jurisdiction falls exclusively within the realms of an Election Court and the Chair of GECOM so aptly determined,” he said in the summing up of his judgement.

Justice Persaud went on to note that the issues raised before the court are not concerned with the interpretation of the Constitution and opined that the issues fall squarely within the exclusive jurisdiction of the High Court under and by virtue of Article 163 (1) (b).

“The unlawfulness or otherwise of an act of omission is clearly a matter for the Elections Court. It should be noted that I deliberately refrained from dealing with in any particular detail those core and peripheral issues which have arisen here which may be the subject matter for consideration by an Elections Court. This is of course in an effort to avoid what may amount to pronouncements or opinions prejudicial to the Elections Court consideration of those issues properly before it…I find that this Notice of Motion is wholly misconceived and is according struck out for what of jurisdiction,” the Judge ordered.

However, Both Gregory and Reynolds said that the court has narrow jurisdiction to hear and determine the matter under Article 177 (4) which states: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that court under this paragraph shall be final.”

Nevertheless, Justice Gregory agreed with Justice Reynolds in his ruling that Article 177 (4) establishes separate exclusive jurisdiction to the Appeal Court in relation to the hearing of qualification of any person as President or the interpretation of the Constitution in regards to such matters. Justice Reynolds went on to state that the High Court does not have exclusive jurisdiction on the case since it was filed within the correct jurisdiction – the Appeal Court.

“The completion of the electoral process by a declaration of results is not a necessary precondition to invoke the jurisdiction of the Court of Appeal under Article 177 (4) – that any person at any stage during the elections process may approach the Court of Appeal pursuant to Article 177 (4) seeking the interpretation of any provision of the Constitution so far as such an interpretation impacted, touched or concern the election of a President,” he said.

“In my respectful assessment of these submissions, the Constitution of Guyana establish separate elections for Members of the National Assembly and for the President even though those elections are taken together,” Justice Reynolds added.

He explained that Article 163 confers on the High Court an exclusive jurisdiction to determine questions as to the membership and elections to the National Assembly, furthering that Article 163 speaks nothing about the election of a President, opining that the Appeal Court is so empowered.

“The President is not a member of the National Assembly and so that distinction is being made consistently in the constitutional architecture. The President is being treated separately…it is clear from my review that there is no provision in Article 163 or the National Assembly Validity of Elections Act which is applicable to the President,” the Judge noted.

Justice Reynolds ruled the High Court, in Article 163 of the National Assembly Validity of Elections Act, does not hear matters in relation to the election of a President, explaining that the original jurisdiction lies with the Court of Appeal. He furthered that the question of concurrent or competing jurisdiction as argued by Trinidadian Senior Counsel, Douglas Mendes for People’s Progressive Party/Civic (PPP/C) Presidential Candidate Dr Irfaan Ali, and General Secretary Bharrat Jagdeo, does not arise.

“In my respectful view, the issue before the court is one that as to the validity of the President which in the instant circumstances depends on the interpretation of the Constitution namely Article 177 (2) and that Article 177 (4) affords jurisdiction in that regard in order to ascertain the true meaning of the words ‘more votes cast’ in Article 177 (2) necessary in this case for the valid election of a President. There is no provision in my respectful view in law in which this issue can be raised in any other court than the Court of Appeal. I have found and ruled accordingly that this issue falls squarely within the jurisdiction of Article 177 (4) of the Constitution,” Justice Reynolds ruled.

“I find that GECOM does have a responsibility to determine the final credible count of the results. It would be reasonable to presume that final credible court would require both a quantitative and qualitative assessment of the reports and the summary of observations submitted to the Commission in compliance with Order 60 of 2020,” Justice Reynolds decided.

David also asked the court to make a declaration that GECOM has failed to “determine a final credible count and or the credibility of the result of the General and Regional Elections” in accordance with Order No 60 of 2020 and the amended order dated the 29th day of May 2020; an order restraining the CEO from “complying with the direction of the Chairman of the Guyana Elections Commission… to submit to the Guyana Elections Commission an Elections Report under Article 177 (2) (b) of the Constitution of Guyana [and under Section 96 of the Representation of the People Act]; order restraining the CEO from submitting to GECOM, his Elections Report which contains votes that are not valid and credible within the meaning of Order No 60 of 2020, and under Section 96 of the Representation of the People Act.

However, the Appeal Court noted that it could not provide those reliefs since it would mean stepping out of the narrow jurisdiction Article 177 (4) offers it.

No jurisdiction to determine CEO
Importantly, Justice Gregory found that the court could not determine the credibility of CEO Keith Lowenfield’s report submitted to GECOM.

“This court has the jurisdiction in light of Order 60 of 2020 to interpret those words to mean valid votes. If more valid votes are cast. I make the point that this court has no jurisdiction to determine whether the Chief Elections Officer’s report was valid or not because in the first place the Chief Elections Officer was not present was not represented and all that this court can determine is whether it ought to place such an interpretation of Article 177 (4),” Justice Gregory noted.

The court also granted a stay of the order for three days.

Lowenfield in his report to the Commission, following the conclusion of the National Recount exercise, submitted that the total valid votes cast at the March 2 General and Regional Elections amounted to 460,352 with the PPP/C securing a victory with 233,336 votes, toppling the APNU/AFC who bagged just about 217,000 votes.

The APNU/AFC, since the National Recount, has been crying foul while levelling unsubstantiated allegations of dead and migrated people voting. Lowenfield seemingly agreed with the contention and offered his opinion that the March 2 polls were not credible.

He revised the figures to reflect what he considered to be valid votes. Those revised figures saw the total valid votes reducing to 185,260 with the APNU/AFC winning a 2/3 majority with just over 125,000 votes. The PPP/C numbers were reduced to 56,628.

Valid votes already counted
Meanwhile, PPP/C’s Anil Nandlall said that all the CEO is left to do now is allocate the seats to be awarded to the respective parties, based upon the total valid votes cast in their favour and identify Dr Ali as the duly elected President of Guyana. He noted that this is based on the valid votes coming out of the recount and not Lowefield’s revised figures.

He noted that the National Recount exercise generated 10 certificates constituting the aggregate of the of valid votes cast in each Electoral District.

“It would be recalled that the Chairperson of GECOM, at a meeting of the Commission held on the 18th day of June 2020, was very clear that GECOM can only declare a result based upon valid votes and found that the results generated by the National Recount exercise consist of only valid votes and that anyone who wishes to challenge the validity of any of these votes can only do so by way of an Election Petition filed in the High Court,” Nandlall said. He added that the Court of Appeal ruling on Monday changes “nothing in that the votes that GECOM has recounted, tabulated and totalled are only valid votes”.

Main photo: Justice Dawn Gregory

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