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People’s Progressive Party/ Civic on Friday dismissed a legal opinion by Attorney General, Basil Williams which contended that the Chief Elections Officer cannot be directed as to what to put in his report on the March 2, 2020 elections under Article 177(2) (b) and section 96 of the Representation of the People Act (ROPA) Cap 1:03.
On Thursday GECOM Chairman, Justice Claudette Singh wrote CEO, Keith Lowenfield ordering him to prepare and submit a Elections Report in accordance with the Certificates of Recount generated during the 33-day National Recount. Her instruction to Lowenfield came one day after the Caribbean Court of Justice (CCJ) set aside the order of the Court of Appeal and invalidated the Elections Report, which was submitted by Lowenfield on June 23. In her letter dated Thursday, July 9, 2020, the Chair of the Elections Commission told Chief Elections Officer that Section 18 of the Election Law (Amendment) Act stipulates that he is subject to the direction and control of the Commission. “In accordance with this section and pursuant to Article 177 (2) (b) of the Constitution, and Section 96 of the Representation of the People Act Cap 1:03, you are hereby requested to prepare and submit your report on the March 2, 2020 General and Regional Elections by 2pm on 10th July, 2020, using the valid votes counted in the National Recount as per Certificates of Recount generated therefrom,” Justice Singh wrote in her letter to the Chief Elections Officer. The 10 Certificates of Recount, generated during the National Recount, showed a win for the People’s Progressive Party/Civic (PPP/C) but the accompanying Observation Reports, which were mandated by Order 60 – the legal cover used to facilitate the recount – pointed to massive irregularities and close to 5,000 cases of voter impersonation – dead and migrant voters.
However, AG Williams in a statement said: “If the Chairman of GECOM advises the CEO as to what to put in his advice to the Commission, it would amount to a breach of the Constitution, since the Chairman of GECOM would be acting on her own advice and not acting only in accordance with the advice of the CEO, after such advice has been tendered to the Commission.”
According to Williams the framers and legislature envisaged that the CEO would independently prepare his advice under Article 177 (2) (b) of the Constitution and his report under section 96 (2) of ROPA, which has been constitutionalised by Article 162 (1) (b) of the Constitution and certainly without directions from GECOM or the Chairman, who must receive both at a duly constituted meeting and shall act on them. “GECOM cannot rely on section 18 of the Election Law (Amendment) Act No. 15 of 2000 which provides that the CEO is subject to the direction and control of the Commission, because it would be in conflict with provisions of Article 177 (2) (b) aforesaid and section 96 of ROPA, which has been constitutionalized as aforesaid,” Williams argued.
He said Article 8 of the Constitution provides that “The Constitution is the supreme law of Guyana, and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void”. Williams also cited a case Justice of Appeal Fraser in the case of Collymore v. The Attorney General of Trinidad and Tobago, 12 WIR pp.35-36, enunciated the classic supremacy of the Constitution thus: “No one not even Parliament can disobey the Constitution with impunity”.
PPP/ C disagrees
However, the PPP/C disagreed with Williams’ opinion while mocking his performance at AG. “It is an established fact that Attorney General Basil Williams has not won a singular case of worth over the past five years. Indeed, many are of the view that the innumerable violations of the Constitution and the rule of law committed by the Coalition Government have been caused by or are a reflection of the type and quality of legal advice the Government receives from the Attorney General,” the PPP/C said in the statement.
The PPP/C said Williams’ advice comes in spite of the CCJ’s ruling which previously declared the CEO’s unilateral acts invalidating votes to be in violation of the provisions of the Representation of the People Act, the CCJ stating as follows: “By the unnecessary insertion of the word “valid”, the Court of Appeal impliedly invited the CEO to engage, unilaterally, in a further and unlawful validation exercise unknown to and in clear tension with the existing, constitutionally anchored electoral laws. That further exercise, which the CEO was quick to embrace in breach of the Court of Appeal Stay of proceedings, also had the effect of facilitating a serious trespass on the exclusive jurisdiction of the High Court established by Article 163…” The PPP/C contends that “Williams’ clear intent is to attempt, once again, to incite and invite the Chief Election Officer to violate the law and commit another perversity. Williams’ conduct amounts to a clear defiance of and contempt for the many pronouncements that the Caribbean Court of Justice made only yesterday on identical issues. Needless to say, Williams’ conduct will be drawn to the Court’s attention for its action. Even at this late hour, Williams is still to comprehend that GECOM is an autonomous constitutional institution insulated from political directions and influences of any type. His untutored advice is therefore constitutionally prohibited.”
The PPP/C said Williams has completely misunderstood and misinterpreted the legal relationship between the CEO and GECOM. This relationship, the party said is not a matter for speculation but explicitly set out in the law, noting that Article 162 (1)(b) of the Constitution states that the Elections Commission: (a) shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and (b) 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.
The party further advanced that consistent with 162(1)(a) and 162(1)(b), Section 18 of the Elections Law (Amendment) Act 2000 states: The Chief Election Officer and the Commission of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission.
Additionally, Order 60/2020 states in pertinent part as follows: 15. For the avoidance of any doubt, the Chief Election Officer and every person appointed or authorized to perform any act or functions by virtue of this Order, are and shall remain subject to the general supervisory power of the Commission.
“With the exception of Williams, it must be clear to every reader that the cumulative effect of Article 162(1)(b), Section 18 of the Elections Law (Amendment) Act 2000, and the provisions of Order 60/2020 is that the CEO is subject to the direction and control the Commission and enjoys no “independence” vis a vis the Commission,” the PPP/C argued.
“Therefore, Williams’ contention that Lowenfield can prepare a report of his own liking and not in accordance with the directions of GECOM is absolutely wrong. Under the Representation of the People Act and where there is there is no recount the CEO is always mandated by GECOM and bound to prepare his report based on the declarations of the ten returning officers.”
