–AG argues in election petition case
Attorney General and Minister of Legal Affairs, Anil Nandlall said Article 162 (1) of the Constitution empowered the Guyana Elections Commission (GECOM) to effectively issue the Elections Recount Order (Order) as he brushed aside concerns by the Elections Petitioner that Section 22 of the Elections Laws (Amendment) Act and by extension the Recount Order are 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 Section 22 of the Elections Laws (Amendment) Act is unconstitutional and Order 60 invalid, null, void and of no effect. Further it was submitted that the Declarations made by the Returning Officers could not have been aside. It was argued that the move to facilitate a national recount in response to allegations of electoral fraud constitute a breach of the Constitution, and resulted in GECOM encroaching on the jurisdiction of the court as outlined in Article 163 of the Constitution.
But the Attorney General in his submissions to the Court, argued that Article 162 (1) confers wide powers on GECOM to allow for it to effectively execute its mandate.
“Accordingly, it is submitted that, pursuant to Article 162 (1), GECOM had the power to issue Order 60 of 2020 which was Gazetted and dated 4 May 2020, and was amended on 29 May 2020. The Recount Order was issued in order to resolve irregularities, anomalies and discrepancies before declaring the results of the elections which are required to be by ROPA and the Constitution,” he told the Court.
He invited the Court to adopt a generous, liberal and purposive approach when interpreting the provision of the Article. In doing so, he pointed to the numerous cases including Ministry of Home Affairs v Fisher [1979] and Whiteman v Attorney General of Trinidad and Tobago and others [1991] among others.
“It is submitted that without more, Article 162 (b) of the Constitution confers the widest plenitude of powers upon GECOM to enable the Commission to effectively and efficiently discharge its functions in ensuring and delivering lawful, fair and credible elections reflecting the will of the people cast by ballots,” the Attorney General told the Court.
The Attorney General also invited the Court to reject the notion that Section 22 of the Elections Law (Amendment) Act is a violation of the separation of powers doctrine and therefore untenable.
“Significantly, in issuing Order 60 as amended, GECOM did not purport to amend any legislation, whatsoever, primary nor subsidiary; neither can Order 60 be described as primary legislation. At its highest, it is subsidiary. It simply sets out a procedure for the recount of ballots, a power that GECOM possesses under the provisions of ROPA.
Therefore, Order 60 seeks not to confer any additional powers on to GECOM but simply altered a procedure: it was therefore adjectival and procedural and not substantive. It is submitted, therefore, that Order 60 is intra vires and Section 22 of the ELAA in no manner whatsoever offends the Constitution. Indeed, it is submitted that under Article 162 of the Constitution, without the aid of section 22 of the ELAA, GECOM is lawfully empowered to promulgate Oder 60 or any such order,” the Attorney General argued.
He also rejected the notion that Order 60 trespasses the exclusive jurisdiction of the High Court to determine whether an election has been lawfully conducted, or affected by any unlawful act or omission as provided for by Article 163 of the Constitution.
“In conclusion, it is respectfully submitted that, Learned Counsel have failed to discharge the heavy burden of rebutting the Constitutionality of Section 22 of the ELAA 2000 neither has it been established that Order 60 was in any manner whatsoever ultra vires or unlawful. Further, the Election Petition purports to be filed pursuant to Article 163 of the Constitution of Guyana and the National Assembly (Validity of Elections) Act Cap 1:04 and there is the absence of material facts in the Election Petition and or no foundation being laid in the Election Petition to establish any grounds upon which the March 2 nd 2020, Elections can be vitiated,” the Attorney General submitted.
The 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.
On or before April 7 the Chief Justice (ag) Roxane George will determine whether the Court will proceed to hear arguments based on the written submissions or allow for the tabling of evidence.
