Any resort to Order No. 60 – the Recount Order – would be in breach of the Constitution and the Representation of the People Act, Jeremie argued. “Order No. 60 is deeply flawed; it is beyond redemption,” he told a panel of three judges led by Justice of Appeal Dawn Gregory in his virtual presentation on behalf of the appellant in the case – Misenga Jones v the Guyana Elections Commission (GECOM) and others. But Kim Kyte-Thomas – the Attorney representing the Chairman of the Elections Commission, Justice (Ret’d) Claudette Singh – told the Appellate Court that to invalidate Order No. 60, would be to aid and abet in electoral fraud.
The Appellate Court – comprising Justices of Appeal Dawn Gregory and Rishi Persaud, and High Court Judge, Priya Beharry – will hand down its decision on Thursday (July 30). The ultimate intention of the appeal is to overturn Chief Justice (ag), Roxane George-Wiltshire’s decision that the elections results must be declared using data from the National Recount, which was executed in May-June under Order No. 60. In her High Court’s decision, Justice George-Wiltshire indicated that the 10 Declarations were overtaken by events, in particular the National Recount and could not be resurrected at this stage of the electoral process.
ORDER No. 60 INVALID
In his virtual appearance, Jeremie, who appeared in association with Attorneys-at-Law Roysdale Forde SC, Mayo Robertson and Rondelle Keller, told the Appellate Court that while the High Court correctly assumed jurisdiction to hear the Fixed Date Application (FDA) filed by Misenga Jones – a Tucville, Georgetown voter – it failed to determine the constitutionality of Section 22 of the Election Laws (Amendment) Act.
It is Jones’ contention that Section 22 of the Elections Laws (Amendment) Act, which was heavily relied upon by the Elections Commission to bring Order No. 60 into effect, is unconstitutional. But the High Court did not rule in her favour. In fact, the Chief Justice, in handing down her decision on July 20, said the majority of issues raised in Jones’ application was res judicata including the issue regarding the constitutionality of Section 22 of the Election Laws (Amendment) Act, and any challenge to that section must be brought via an Elections Petition.
But the Trinidadian Senior Counsel told the Appellate Court that the High Court fell short in its decision, positing that the principles of res judicata cannot be applied to the case on the simple basis that the Recount Order was never challenged in the Courts.
In laying the foundation of his argument that Order NO. 60 was created using an unconstitutional legislation – Section 22 – Jeremie drew the Court’s attention to Article 8 of the Constitution, which states that the “Constitution is the supreme law of Guyana, and if any other law is inconsistent with it, the other law shall, to the extent of the inconsistency, be void.” Further, he referenced to Article 170 of the Constitution, which states that Laws must be passed by the National Assembly and assented to by the President.
For those reasons, he told the Court that it is unconstitutional for Section 22 of the Election Laws (Amendment) Act to give GECOM law-making powers. As it is, Section 22 of the Election Laws (Amendment) Act, grants the Elections Commission the powers to amend the Electoral Laws to remove any difficulty that arises in connection with the application of the Representation of the People Act during an electoral process as deem necessary but Jeremie told the Appellate Court such could not be constitutional. He argued that it not constitutionally permissible for the legislature to delegate its power to GECOM to amend legislation.
“Section 22 is wide, it is unfettered, it is unregulated,” he argued, noting that such unfettered powers cannot be given to the Elections Commission, especially when those powers could result in the repealing or altering of essential laws already enforced by Parliament. GECOM he contended cannot override an Act or pass orders, such as Order No. 60, in direct disobedience of the mandate contained in the Legislation.
Turning his attention to the judgement of the Caribbean Court of Justice (CCJ) in the case Irfaan Ali and Bharrat Jagdeo v Eslyn David and others, Jeremie told the Judges that the apex court ruled that Order No. 60 can neither impact the interpretation of the Constitution nor create a new electoral regime; for such to occur, would be constitutionally unacceptable.
Jeremie submitted that in attempting to amend the Representation of the People Act using Order No.60, GECOM not only created a new electoral regime but encroached on the jurisdiction of the High Court, which, under Article 163 of the Constitution, has exclusive jurisdiction to adjudicate on the validity of an election, via an Elections Petition.
“What Section 22 did is to give birth to an Order which allows for the breaking of the seals of ballot boxes, the inspection and scrutiny of ballots, it allows for GECOM, if satisfied to set aside declarations, all of those are matters for the High Court under the Constitution and any such action taken by GECOM, is and must be unconstitutional,” Jeremie told the Appellate Court, while emphasizing that Order No. 60, having been brought into effect using unconstitutional means, is invalid.
On July 13, the Chair of the Elections Commission, using Order No. 60, purported to have set aside the 10 Declarations made by the Returning Officers pursuant to Representation of the People Act but the Trinidadian Senior Counsel reminded the Appellate Court that only via an Elections Petition can declarations be set aside. According to Article 163 of the Constitution and the National Assembly (Validity of Elections) Act, Elections Petition can only be filed in the High Court within 28 days of the declaration of the results of an election by the Elections Commission. No such declaration has been made to date.
Further, Robertson, who also appeared on behalf of the appellant, told the Appeal Court that the High Court, misinterpreted its ruling in the Ulita Moore Case, and in doing so, erred in law when it ruled that the constitutionality of Section 22 of the Election Law (Amendment) Act could only be determined via an elections petition.
“While we have no quarrel with the view that constitutionality can be canvassed in an Elections Petition, the majority opinion in the Moore case does not suggest that the Petition Court is the only permissible venue for a challenge. With the greatest respect, we believe that the Chief Justice was taking impermissible liberty with the language of the Moore Appeal Court when she found that the decision in the Moore Appeal stands for proposition that the constitutionality of Section 22 only be challenged in an Elections Court,” he submitted. Robertson, like Jeremie, argued that Section 22 is unconstitutional, and Order No. 60 is invalid.
But Kim Kyte-Thomas, in representing the Chair of the Elections Commission before the panel of judges, argued against the invalidation of Order No. 60 and by extension the National Recount.
In what could be described as a spirited presentation, Kyte-Thomas told the Judges that the Appellant is asking “the Judicial System to aid and abet a specific illegality or a series of illegalities which occurred in this nation which led to the March 13 Declaration.”
“They are asking the Judicial System to set aside, remove the recount numbers, the recount results which, your Honours, have been hailed by our highest court as a transparent credible process,” the Legal Counsel added.
She told the Court that GECOM, in exercise of its powers under Article 162 of the Constitution, facilitated the National Recount in an effort to produce credible results having faced a series of illegalities. GECOM, Kyte-Thomas argued, cannot revert to the controversial March Declarations, and the Court ought not aid and bet in such illegality.
“Your Honours, I ask this Honourable Court not to be used as an instrument of fraud, because when one analyzes what they are asking you to do, that is exactly what the appellant is asking this Honourable Court to do,” she told the Judges.
For Kyte-Thomas, the Attorneys representing Jones have dressed up the application with a lot of legal language, a lot of legalese.
While Jeremie and others have argued that Section 22 of the Election Laws (Amendment) Act and Order No.60 are unconstitutional and in breach of Article 163 of the Constitution, Kyte-Thomas submitted that such arguments could only be determined in an Elections Petition.
Further, she submitted that there must be a clear distinction between what is an “Elections Dispute” and what are the roles and functions of the Elections Commission in the management of an election. In doing so, she sought to dismiss the contention by Jeremie and others that it was an elections dispute that led to the National Recount.
Referencing to the decision of the High Court in the case – Reaz Holladar v the Returning Officer and others – Kyte-Thomas said the Court, in assuming jurisdiction, said it was important to ensure that the statutory officers of the Commission comply with the electoral laws. The Legal Counsel said GECOM, in a similar manner, is ensuring conformity with the electoral laws of the country, inclusive of Order No. 60.
GECOM Chair on July 9 had instructed the Chief Elections Officer, Keith Lowenfield, to compile an Elections Report using the Certificates of Recount generated during the National Recount, but the Chief Elections Officer had reverted to the March Declarations on the basis that the recount had created a new electoral regime in breach of the Constitution and the Representation of the People Act. Justice Singh had ordered another Elections Report, in strict compliance with her instructions. To date, such a report has not been submitted.
“Your Honours that is not an elections dispute, that is simply an officer being insubordinate and executing what I term a clear dereliction of duties; that is not an elections dispute. And the Court could find supervisory jurisdiction to deal with insubordination by the officers of the secretariat just as what happened in Holladar, it is similar,” Kyte-Thomas said.
As stated by the High Court, the Legal Counsel told the Judges that the Chief Elections Officer is not a constitutional officer but a statutory officer who is subject to direction and control of the Elections Commission. He, she submitted, must comply with the instructions of the Elections Commission and produce an Elections Report that reflects the data generated during the National Recount.
“…He must act lawfully. He must act in conformity with the laws of this land, which right now your Honours, include Order No. 60,” she posited, while rejecting the notion that the CCJ had invalidated or set aside Order No. 60.
GECOM, she argued, must be allowed to manage the electoral process in accordance with Article 162 of the Constitution, which empowers it to take actions deemed necessary to ensure impartiality, fairness and compliance with the Constitution or any Act of Parliament. She iterated that the appellant in asking the Court to set aside the recount and return to the “controversial declarations,” is equally asking the Judiciary to be an instrument of fraud.
“The Chief Elections Officer is a Statutory Officer and he is subject to the disciplinary control of the Commission, I wish your honours look at the clear provision that he cannot flout the law, his report must be in accordance with the law, and right now, Order No.60 forms part of the electoral laws of this country, so he must act in accordance with that,” she told the Appellate Court.
Kyte-Thomas also supported the view that the majority of issues raised in Jones’ application is res judicata, and for those reasons, she asked the court to swiftly dismiss the appeal. “Guyana needs closure to the electoral process,” she posited.
Trinidad and Tobago’s Senior Counsel, Douglas Mendes, who appeared on behalf of added respondents Bharrat Jagdeo and Irfaan Ali of the People’s Progressive Party/Civic (PPP/C), endorsed Kyte-Thomas’ arguments.
He submitted that GECOM, an independent constitutional authority, has supervisory powers over its employees including the Chief Elections Officer. While ruling out the contention that Section 18 of the Election Laws (Amendment) Act is in tension with the Constitution, in particular Article 177 (2) (b) of the Constitution, Mendes submitted that the CEO is subject to the direction and control of the Elections Commission.
Contrary to the arguments put by Jeremie and Robertson, Mendes submitted to the Court that Section 22 is constitutional and Order No. 60 is valid, and on that basis, the Chief Elections Officer ought to compile the Elections Report using the data generated from the National Recount as instructed by the Elections Commission.
Similar arguments were put by Senior Counsel Hari Ramkarran and Attorneys-at-Law Timothy Jonas, Kamal Ramkarran, Sanjeev Datadin and Kashir Khan who appeared on behalf of a number of the country’s small political parties, including A New and United Guyana, The New Movement, Change Guyana, The Citizenship Initiative, The Liberty and Justice Party and the United Republican Party. In effect, all of them implored the Appellate Court to dismiss the appeal, and uphold the decision of the High Court that the results of the 2020 Elections must be declared using the data from the National Recount.
But Jeremie, in his rebuttal, told the Court that the Chief Elections Officer has already produced an Elections Report that is consistent with the Constitution and the Representation of the People Act, and it must be used to declare the results of the elections.
“To base any report on Order No.60 would be wholly inconsistent” with Article 177 (2) (b) of the Constitution and the Representation of the People Act, he submitted.
“Order No. 60 is deeply flawed, it is beyond redemption,” Jeremie added, while iterating that GECOM already has it in its possession an Elections Report that is compliant with the Constitution and Elections Laws, and therefore, should make haste and declare the results of the elections.
The Elections Commission, and its Chairman cannot ask the Chief Elections Officer to breach the electoral laws, Jeremie said, noting that they should desist from doing so.
“If there are any challenges to the CEO’s report and advice, and the results of which it relies, that could only be done as pointed out by the CCJ by way of an Elections Petition to the High Court pursuant to Article 163. It is the High Court that has exclusive jurisdiction to determine the question that the Chair of GECOM seeks to arrogate unto herself,” the Senior Counsel argued.
The Representation of the People Act and the Constitution must be respected, Jeremie emphasized, while iterating that the Elections Commission must heed the advice of the Chief Elections Officer.
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