In a majority ruling handed down this afternoon, the Court of Appeal ruled that it has jurisdiction to hear a motion filed by Eslyn David, a supporter of the ruling A Partnership for National Unity +Alliance for Change (APNU+AFC) coalition government which sought to block the Guyana Elections Commission (GECOM) from declaring the results of the March 02, 2020, elections using the tabulated votes from the recount.
Appellate Judge Dawn Gregory and High Court Judge Brassington Reynolds ruled that the issues raised in the motion fall within Article 177 (4) of the Constitution of Guyana as contended by David, the applicant. Appellate Judge Rishi Persaud, ruled to the contrary.
Justice Persaud, in a dissenting judgment, ruled that the Court of Appeal has no jurisdiction to entertain the motion which raises issues that are for an election petition pursuant to Article 163 (1) (b) of the Constitution and the National Assembly (Validity of Elections) Act for which the Constitution has conferred exclusive jurisdiction on the High Court to hear.
David, a Georgetown resident, who says she has an avid interest in Guyana’s political affairs, and has been anxiously awaiting the results of those elections, has mounted a challenge against GECOM declaring the final results, pursuant to Article 177 (4) of the Constitution, which says 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 that question depends upon the qualification of any person for election or the interpretation of the constitution, and any decision of that court shall be final.
In his ruling, Justice Reynolds said the question of jurisdiction is the foremost issue in this matter. According to him, the constitution establishes separate elections to the National Assembly and the president, even though the elections are taken together. He, therefore, held that Article 177 (4) establishes a separate exclusive jurisdiction on the Court of Appeal as it relates to hearing matters relative to the qualification of any person for the valid election as President, or the interpretation of the Constitution.
David, through her lawyers, John Jeromie, Mayo Robertson and others, had asked the Court to grant a declaration that GECOM failed to determine a final credible count of the votes, and has failed to act in accordance with the terms of the Recount Order No. 60 of 2020, and the amended order dated May 29, 2020 that were published in the Official gazette.
In light of the foregoing, David also asked the court to grant an Order restraining Chief Elections Officer (CEO), Keith Lowenfield from submitting any report to Chairman of GECOM retired Judge Claudette Singh, pursuant to Article 177 (2) (b) of the Constitution or under Section 96 of the Representation of the People Act, which outlines the methodology for the allocation of Parliamentary seats, on the basis that the votes certified during the Recount were not valid as they lacked credibility.
Further, David had also requested the court to grant an Order that there be an interpretation of Article 177 (2) (b) of the Constitution. Article 177 of the Constitution speaks specifically to the Election of the President. In asking the Court of Appeal for an Order that there be an interpretation of the words “more votes are cast” contained in Article 177 (2) (b) of the Constitution of Guyana, David argues that this must mean “valid votes” cast.
Article 177 (2) (b) states: there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.
Justice Reynolds, in giving an interpretation of those words agreed with the submissions proffered by David. According to the judge, these words must be interpreted to mean “more valid votes cast” in the terms of Order No. 60 of 2020.
Justice Gregory’s ruling mirrored that of Justice Reynolds. According to her, “more votes cast” has to be interpreted within the terms of the Order which she said has sufficient force to impact the interpretation of those words as it relates to the March 02, 2020 elections. The court would not be venturing out of its jurisdiction in giving an interpretation, Justice Gregory underscored as she placed emphasis on Article 177 (4) of the Constitution.
In light of the foregoing, she held that the words “more votes cast” have to mean “more valid votes”. Against this backdrop, the Court of Appeal granted the Order sought by David for there to be an interpretation of Article 172 (b) of the Constitution. The other reliefs sought in the motion by David were refused.
Meanwhile, Justice Persaud, in his ruling, said the issues raised in David’s application have nothing to do with the validity of the election of a President, as provided for under Article 177 (4) which is the basis for her application. But rather, the application is asking the court for an interpretation of what is a “final credible count” under the terms of Order No. 60 of 2020 published in the Official Gazette by GECOM which governs the Recount.
It is against this backdrop, Justice Persaud held that the Court of Appeal has no jurisdiction to entertain the application, as Article 177 (4) can only be invoked after a President has been elected. As a consequence, Justice Persaud dismissed David’s application. This motion is simply premature and must fail, noted Justice Persaud, who ruled that the motion is misconceived and struck out for want of jurisdiction.
As for the other reliefs including an Order restraining Lowenfield from submitting any report to Justice Singh, pursuant to Article 177 (2) (b) of the Constitution or under Section 96 of the Representation of the People Act, which contains votes from the Recount that are not valid and credible, that were sought by David, they were refused by the Court of Appeal.
The Respondents in the matter, Justice Singh; Presidential Candidate of the People Progressive Party Civic (PPP/C), Irfaan Ali, and the party’s General Secretary Bharrat Jagdeo and several smaller parties that contested the elections, requested and were granted a stay of three days of the Court of Appeal’s ruling, more than likely to file an appeal to the Caribbean Court of Justice (CCJ).
The Court ordered that the parties are to bear their own cost.
Justice Singh was represented by former Solicitor General Kim Kyte-Thomas; Lowenfield was unrepresented. Ali and Jagdeo were represented by a battery of lawyers led by Trinidad and Tobago Senior Counsel Douglas Mendes. The smaller political parties were represented by former Speaker of the National Assembly Senior Counsel Ralph Ramkarran, lawyer Timothy Jonas, among others.
