…..as it sets timelines for petition challenging validity of Order 60, elections laws
By Svetlana Marshall
Having ruled that there was strict compliance with the National Assembly (Validity of Elections) Act and Rules in the filing of Elections Petition 88, Chief Justice (ag) Roxane George, on Monday, laid out the timeline for which submissions must be made by both the petitioners and the respondents.
The lawyers representing the petitioners – Claudette Thorne and Heston Bostwick, have until February 12, 2021 to file their submissions, while the 13 respondents in the case including the Chief Elections Officer (CEO), Keith Lowenfield and the Attorney General, Anil Nandlall, have until March 5, 2021 to file their response, while submission in reply is due on March 19, 2021.
However, ahead of the hearing and determination of the case, which challenges the constitutionality of the National Recount Order (Order 60), and Section 22 of the Elections Laws (Amendment) Act on which it was created, the Chief Justice ordered the Guyana Elections Commission (GECOM) to lay over both the Statements of Poll (SOPs) and the Statements of Recount (SORs) to the Registrar of the Court for safekeeping.
“The Statements of Poll and the Statements of Recount are to be produced to the Registrar for safekeeping,” the Chief Justice said during a preliminary hearing of the election petition case – Claudette Thorne and Heston Bostwick vs. Chief Elections Officer and others – on Monday.
The orders were issued in response to concerns raised by Senior Counsel Douglas Mendes, who is representing the interest of the Fourth Named Respondent, Bharrat Jagdeo – the representative of the People’s Progressive Party/Civic (PPP/C). Mendes, during his virtual appearance, pointed out that the Chief Elections Officer is legally required to destroy the Election Documents 12 months after the conduct of the March 2 General and Regional Elections, and as such, the Court should issue an Order, in keeping with Rule 19, for the production and inspection of the Election Documents, since the hearing and determination of the case would surpass March 2, 2021. There are some 2,400 SOPS to be produced, and a similar quantity of SORs.
PRESENTATION OF EVIDENCE
Jagdeo, through his attorney, is hoping to rely on the SOPS and or SORs during the course of the case but the lead attorney for the Petitioners, Senior Counsel Roysdale Forde, has reminded the Court that the petition is based on law.
Mendes told the Chief Justice that while Forde has indicated that there is no need for the production of evidence during the case, his client wishes to table evidence during the proceedings, to prove to the Court that Order 60 was necessary on the grounds that the Region Four Returning Officer (RO), Clairmont Mingo generated a fraudulent count during the early stages of the elections.
“Mingo’s count cannot be accepted by this Court. So, we would want to put before you the evidence of the count that actually took place,” Mendes told the Chief Justice.
The Attorney General, who also appeared virtually, endorsed the application by Mendes for the admission and presentation of evidence in the form of affidavits and exhibits.
Attorney-at-law Arudranauth Gossai, who is among attorneys representing the Chief Elections Officer and by extension GECOM, also teamed up with the PPP/C and the Attorney General to call for the admission of evidence during the hearing of the petition.
Gossai told the Court that while the case “boils down” to the interpretation of Order 60 and the constitutionality of the Election Laws (Amendment) Act, there are multiple allegations against GECOM, for which he wishes to respond. “Order 60 sprang from a certain factual matrix, and so for GECOM to defend Order 60, there are certain facts that would have to be before your honors,” he submitted.
But Forde objected. “The issue of the unconstitutionality of Order 60 flows from Section 22 of the Election Laws Amendment Act. As far as I recall your honour the petition deals with the validity of that section as a matter of law, the circumstances which would have caused GECOM to act or not act would be subsidiary matters. Whether or not GECOM has the power or not to do it is separate from the circumstances under which GECOM purported to exercise that power,” Forde submitted.
The Chief Justice, in making her decision, said while she does not intend to “shut out” the respondents, she will first accept the submissions dealing with the legal matters, and will make a determination on or before April 7 on whether the Court will proceed to hear arguments based on the written submissions or allow for the tabling of evidence.
