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….argue that only Parliament could alter the Election Laws, not GECOM
In maintaining that Section 22 of the Elections Laws (Amendment) Act is unconstitutional, the Petitioners in the case – Claudette Thorne and Heston Bostwick vs. the Chief Elections Officer (CEO) and others – have submitted to the Court that only Parliament could amend the Laws of the country, as it ruled out of the notion that the Guyana Elections Commission (GECOM) had legal powers to amend the Election Laws to pave way for a National Recount.
In response to concerns by some of the political actors that the results of the March 2020 General and Regional Elections as compiled by the Chief Elections Officer, Keith Lowenfield, lacked credibility, the Elections Commission relied on Section 22 of the Election Laws (Amendment) Act to bring into effect Order 60 for the facilitation of a National Recount, though the Representation of the People Act lays out strict rules for the compilation and declaration of election results in the country.
Trinidad and Tobago’s Senior Counsel John Jeremie and Guyana’s Senior Counsel Roysdale Forde, who form part of the legal team representing the petitioners, in their written submission, established from the onset that Section 22 is unconstitutional and due to its unconstitutionality, Order 60 is invalid, null, void and of no effect.
Section 22 of the Election Laws (Amendment) Act provides that:”(1) If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty. (2) Any order under subsection (1) shall be subject to negative resolution of the National Assembly, only if Parliament is not dissolved and not otherwise, and shall not be made after the expiry of three months from the date of election”
The Senior Counsel in laying the foundation of their argument, alluded to Article 8 of the Constitution which states that the Constitution is the supreme law of the country, and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.
The Attorneys submitted that embedded in Guyana’s Constitution is the doctrine of the separation of powers between the three organs of government, namely the judiciary, the executive and the legislature.
“The doctrine though not expressly stated in the Constitution is implied: Hinds v R  A.C. 195. The exclusive law-making power of the legislative arm in Guyana is embodied in article 65(1) of the Constitution which provides that: “Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Guyana,”” the Legal Counsel told the Court.
It was submitted that Parliament, and by extension GECOM has no power to ignore the established conditions of law-making imposed by the Constitution.
“It is clear that the Constitution reposes the power to make, amend and repeal laws solely in the legislative arm, the National Assembly. However, section 22 of the Election Laws Act purports to delegate Parliament’s law-making power to the Guyana Elections Commission specifically to amend legislation by the making of a mere order. The purport of section 22 of the Election Laws (Amendment) Act empowers the Guyana Elections Commission with the wide, unfettered and unregulated discretion to make laws which is ultra vires the Constitution and contrary to the rule of law,” Jeremie and Forde argued.
In support of their argument, the Senior Counsel pointed to a case involving The Delhi Laws Act, 1912 1951 SCR 747, in which the Court held that the Acts were ultra vires the Constitution to the extent that power was given to the executive to extend Acts and that Parliament had abdicated its functions and delegated them to the executive government. The Senior Counsel also alluded to the case Devi Das Gopal Krishnan v State of Punjab, in which it was established that the legislature cannot confer arbitrary power on the executive and the executive cannot overstep the limits of delegation.
“Further on this point, on the wide powers conferred by section 22, the case of Kunwar Raghuraj Partap Singh v Chief Elections Commissioner decision of 13 February 1998 is worthy of consideration, precisely since the powers vested in the Elections Commission of India are the same. In Kunwar Raghuraj Partap Singh, the Supreme Court of India stated that: ‘From what has been discussed above it is amply clear that the powers vested in the Election Commission under Article 324(1) of the Constitution are plenary in nature. The Commission is vested with very wide powers. The exercise of the powers, however, is not without check. The power has to be exercised with legal circumspection,’” the Senior Counsel submitted.
Against this background, the Counsel submitted that the Election Laws (Amendment) Act has empowered GECOM to act in clear breach of the Constitution.
“Section 22 of the Election Laws (Amendment) Act has conferred on the Elections Commission an arbitrary law-making power to amend primary legislation by mere order. The delegation of power to the Guyana Elections Commission to amend laws is an abdication by Parliament of its law-making powers with respect to the making of laws and policy pertaining to the conduct of elections,” the attorneys argued on behalf of the petitioners.
The submitted further that Section 22 offends the separation of powers since it reposes in an executive body the full unfettered discretion to amend primary legislation even where Parliament is dissolved.
The respondents in the case have until March 5, 2021 to respond to the submission made by the petitioners, however, petitioners are hoping to have the Court nullify the results of the 2020 Elections on the grounds that the results as declared by GECOM were in breach of the Representation of the People Act and the Constitution of Guyana.