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-petitioners tell Court “egregious” breaches of constitution during elections a travesty
The petitioners in the case – Claudette Thorne and Heston Bostwick vs. the Chief Elections Officer (CEO) and others (Petition 88)– said the respondents, in the matter, have offered no clear arguments on whether Section 22 of the Elections Laws (Amendment) Act is constitutional or not.
The Guyana Elections Commission (GECOM) had relied on Section 22 of the Elections Laws (Amendment) Act to bring Order 60 (National Recount Order) into effect during the highly controversial 2020 General and Regional Elections.
Singling out the Chief Elections Officer (CEO), Keith Lowenfield; Vice President, Bharrat Jagdeo; and the Attorney General, Anil Nandlall, Thorne and Bostwick, through their battery of lawyers led by Trinidad and Tobago’s Senior Counsel John Jeremie, argued that at times, the respondents contradicted each other in their legal submissions in addressing the issue of the constitutionality of Section 22.
Summarizing their arguments, Jeremie said that the CEO, Jagdeo and the Attorney General, all of whom are respondents, have argued that Section 22 of the Elections Laws (Amendment) Act is not unconstitutional but if it is unconstitutional, the affected portions could be severed leaving its effect intact. It was also submitted that even if Section 22 is unconstitutional, Order 60 is saved by virtue of the “broad powers” of Article 162 (1)(b) of the Constitution conferred on GECOM; and the conduct of the recount cannot be said to be a sham or a travesty.
But Jeremie and his team, which includes Senior Counsel Roysdale Forde, and Attorneys-at-Law Raphael Trotman and Olayne Joseph, told the High Court that the “very egregious breaches of the Constitution in the conduct of the 2 March 2020 Elections rise to the level of a sham and a travesty.”
From the outset, the Petitioners submitted that none of the judicial statements made in respect of Section 22 and or Order 60 during the Judicial Reviews conducted during the Elections in 2020, were made upon the merits of any argument in respect of their constitutionality.
The Senior Counsel said with the exception of the Chief Elections Officer, Jagdeo and Nandlall, who were part of the election cases, had argued that no Court was seized with the jurisdiction to review the constitutionality or unconstitutionality of Section 22 and Order 60, outside an Election Petition. “It is on that basis that the Courts refused to consider the merits of the arguments,” the battery of lawyers submitted.
They added: “In fact, the decision of the Court of Appeal expressedly provided that any issue with respect to the constitutionality of section 22 was one to be taken at an election petition. Therefore, it is submitted that this Honourable Court is not constrained by the judicial pronouncements or “endorsements” made in previous judicial review proceedings, such statements being made without any Court deliberating upon the merits.”
Jeremie and Team also rejected the argument that the Region Four Returning Officer, Clairmont Mingo failed to comply with Section 84 of the Representation of the Peoples Act when he was ordered to do so by the Court. According to the legal team, there is no evidence to support the respondents’ claim.
They also rejected the High Court’s decision in the Christopher Ram v Chief Election Officer (2019) as an authority in support of the constitutionality of Section 22. It was submittied that the Court was not rendering a decision on the merits of the constitutionality or unconstitutionality of the very section.
“The Petitioners vehemently object to all and any assertions by the Respondents that the issue of the constitutionality of section 22 of the ELAA and its Order 60 is an issue res judicata,” the legal team told the Court.
The Respondents had placed heavy reliance on Article 162 (1)(b) to bolster their alternative argument in an attempt to salvage Order 60 but Jeremie and Team reminded the Court the Constitution clearly states that GECOM’s functions are “subject to the provisions of this Constitution.”
Article 163 of the Constitution gives the High Court exclusive jurisdiction to address elections related matters while Article 170 addresses the mode of making and amending laws.
“Article 163 provides for the exclusive jurisdiction of the High Court in respect of determining the nature of “difficulties” that section 22 has conferred upon GECOM to resolve. It is not for GECOM after declarations have well been crystallised to entertain disputants and descend into an
investigation of their controversies in a quasi-judicial effort to resolve them,” the legal team submitted.
They added: “What must be made pellucidly clear is that GECOM had set aside declarations in all ten Regional Districts. It was not isolated to Region 4 as the Respondents would like to place their emphasis. GECOM had taken upon itself the judicial powers of the High Court and had embarked on its own fact-finding exercise, one for the remit of the High Court.”
To compound the situation, the Lawyers said GECOM usurped the powers of the Parliament and amended the laws by way of an order.
The case will come up again in April, however, 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.