We may not like the CCJ ruling but must use same to move forward — Lincoln Lewis

By Lincoln Lewis

THE Caribbean Court of Justice (CCJ) was approached to weigh in on our electoral process. There was reservation among some, yours truly included, that the court could so do after the ruling made by our Court of Appeal (CoA). The judges said they can and on 8th July issued their judgement.
Resulting from the judgment is that the CoA operated outside of its jurisdiction, but the CCJ had jurisdiction to hear the case brought by the appellants. The court not only ruled that the chief elections officer (CEO) did not have the authority to invalidate any vote, but such is the purview of the High Court by the way of an election petition, as outlined in Article 163 of the Constitution of Guyana. This ruling is consistent with the position of the Chair of the Guyana Elections Commission (GECOM) in addressing concerns about voter impersonation and other anomalies found during the national recount.

Said “Court also notes that an Order issued by GECOM in any particular context can never determine how the Constitution is to be interpreted. It is a matter of elementary constitutional law that if ordinary legislation is in tension with the Constitution, then the courts must give precedence to the words of the Constitution and not the other way around.”

The CCJ clarified, stating that “With respect, the notion that Order 60 could either impact interpretation of the Constitution or create a new election regime at variance with the plain words of the Constitution is constitutionally unacceptable.” The Order issued by the GECOM is 60 of 2020 (4th May and amendment 29th May 2020), which created the framework for the recount. What the judgment is in effect saying is that the Order is of no effect.

Such judgment stands in countenance with Article 9 of the Constitution. Said article expressly states, “This 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.”

Back in March, Chief Parliamentary Counsel Charles-Fung-A-Fat-S.C advised against the Order, stating that “the provision that the Order is seeking to make has the effect of amending Section 84 of the Representation of the People Act and would therefore be ex post facto” (Guyana Chronicle, 18th March 2020-Chief Parliamentary Counsel advises GECOM against gazetting the order for recount- warns that such a move would supersede electoral laws, infringe on rights of electors). PPP/C Executive Member Anil Nandlall challenged Fung-A-Fat’s advice. In the said article Nandlall reportedly stated that the “GECOM is empowered by law to make almost any decision possible in relation to its role and the elections body.”

The Recount Order stipulated that votes will be tallied on Statements of Recount (SoRs). The Representation of the People Act, Cap 1:03, which lays out the requirements for conducting an election, requires tallying of votes on a Statement of Poll (SoP) and the process involving statutory officers. The two situations, even though dealing with tallying, operationally were diametrically opposite.

Whereas the CCJ sided with the chair on the proper authority (High Court) to enquire into and invalidate votes or an election, the court dissented with GECOM that it could create a “new regime” to address the difficulties that arose during the tabulation exercise. From the outset, the CEO sought to recommend administrative resolution with regard to tallying the votes of Region Four. This was ignored. It may be recalled he said, “If, at the end of the day, that doesn’t work, the CEO will be involved with his statement to have a resolution to the issue” (Demerara Waves, March 4, 2020- GECOM resolves vote-padding concerns, resume verification on Region Four).

We are where we are today in this binding situation because of several factors, not the least of which are poor decision-making and disrespect for the Rule of Law as evident from political and other leaders, the international community, and GECOM. I say this in full recognition that another push is being made to have the Chair of GECOM act in contravention of constitutional mandate and with disregard for the statutory and constitutional role of the CEO. The CCJ’s judgement as well as the Constitution and Laws of Guyana must be respected. No more or no less is expected.