GUYANA | CCJ Flays AG Nandlall, Strikes out Opposition Election Petition

MONTEGO BAY, October 19, 2022-  The Caribbean Court of Justice, CCJ, this morning condemned last night’s premature disclosure of today’s CCJ’s decision by Attorney General Anil Nandlall on his Facebook page, despite his full knowledge that there was an embargo on its disclosure until this morning.

Guyana’s Solicitor General Nigel Hawke apologised to the Court on behalf of Nandlall who was absent, and asked  the Court to accept “our most profound and sincere apology” for that “error” by the administrator of Mr Nandlall’s Facebook page. 

The CCJ expects the Attorney General to apologise publicly on his Facebook page, based on a commitment given by Mr. Hawke.

Justice Jacob Witt pointed out that all parties to the court’s deliberations had received an advanced confidential copy of its decision which was embargoed until 10:00 am today when the CCJ was scheduled to deliver its judgment.

“This is totally unacceptable and any further action of the court will be contemplated. For example, is it possible in cases like this to send an advanced copy in Guyana. I mean this is really serious business and we cannot have it and this is something we will discuss in a broader form,” Justice Witt said. 

Justice Witt said the Facebook Post created the impression that the Attorney General had privileged access to information from the CCJ.

Justice Maureen Rajnauth-Lee said she was concerned about the adverse impact of the release of the decision on the Attorney General’s Facebook page on the regional court. “Apart from the apology and all those other things that I have heard today, I am very, very concerned about the impact of the integrity of the court and I would like Counsel here to come up with something that will remedy that impact,” she said.

Attorney Selwyn Pieters, one of the lawyers for the opposition,said Mr Nandlall’s apology was not accepted as it has injured the image of the court. “What that premature release did- it was shared all over the Internet- what it did was put the administration of justice into disrepute because if Your Honours staff read the comments, it almost seems like the Attorney General had some privy,” said Mr Peters. He said in Canada lawyers are required to give a written undertaking that they would not release embargoed judgements.

In its judgment today the Caribbean Court of Justice (CCJ) ruled that the High Court’s dismissal of an opposition election petition could not be appealed and that Chief Justice Roxane George-Wiltshire was right in dismissing the appeal because of late service on A Partnership for National Unity+Alliance For Change (APNU+AFC) Representative of the List , David Granger who was a “right and proper party” in the petition.

The CCJ routinely provides an advanced copy of its decisions to lawyers for both sides, but the Court said Mr Nandlall’s apology did not bring the concern to an end as the CCJ would have to take a policy decision on what to do generally and certainly about sensitive cases such as the Guyana election petition.

The opposition, in that petition had challenged the constitutionality of the declaration of the results of the March 2, 2020 general and regional elections. That declaration was made on August 2, five months after polling day, after a recount of all the votes cast had been conducted under a special order by the Guyana Elections Commission (GECOM).

The CCJ said  it disagreed with the majority of the Court of Appeal that it had jurisdiction to entertain an appeal from a decision of the Chief Justice, sitting in the High Court, dismissing an election petition for improper/late service.

After the General and Regional Elections were held in Guyana on 2 March 2020 and the results  declared in August 2020, Election Petition 99P/2020 was filed by the petitioners, Monica Thomas and Brennan Joette Natasha Nurse (now First and Second Respondents). They challenged the validity of the election, seeking an order that the election be deemed unconstitutional, null, void and of no legal effect.

The petition was heard by Chief Justice (Ag.) Roxane George. At the case management stage, the Chief Justice raised the issue of whether Mr David Granger, Representative of A Partnership for National Unity and Alliance for Change, was a proper and necessary party to the petition.

The Chief Justice also raised the question of whether he had been properly served within the required statutory period. Mr Granger should have been served by 21 September 2020, but was, in fact, served on 25 September 2020. Accordingly, the Chief Justice dismissed the petition, ruling that it was a nullity.

The petitioners appealed the decision of the Chief Justice. However, the Attorney General and Mr Bharrat Jagdeo objected on the ground that the Court of Appeal lacked jurisdiction to hear the appeal. They argued that Article 163 of the Constitution creates a regime for hearing election petitions, and only provides two circumstances for appeal: one, an appeal from a decision of the judge granting or refusing leave to institute proceedings to determine questions stated in Article 163(1) of the Constitution and two, an appeal from the determination of any of those questions in Article 163(1) or an order made in consequence of such determination.

The Attorney General and Mr Jagdeo argued that the Chief Justice’s decision did not fall into either circumstance. Therefore, Ms Thomas and Ms Nurse had no right to appeal the decision. The majority of the Court of Appeal disagreed, holding that it did have jurisdiction to hear the appeal.

The judgment of the Court was delivered by Justice Winston Anderson JCCJ, with whose reasoning Wit JCCJ and Rajnauth-Lee JCCJ, agreed. The majority disagreed with the Court of Appeal, finding that the Court of Appeal lacked jurisdiction to hear the appeal. Justice Anderson explained that Article 163 of the Constitution, the National Assembly (Validity of Elections) Act and the National Assembly (Validity of Elections) Rules establish a comprehensive regime for challenges to an election.

Election Petition 99P/2020 had to be determined in accordance with this framework, including whether there was compliance with the provisions for service of the petition. The Court emphasised that Article 163(3) of the Constitution limits the right to appeal decisions of the High Court in election petitions to only two circumstances. The decision of the Chief Justice to strike out the petition on the basis that there was improper/late service on Mr Granger did not fall into either of those circumstances, and, thus, an appeal was not possible.