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Dr. David Hinds, like many other persons, is making his views known on the Caribbean Court of Justice’s ruling on Election Petition # 99 of 2020.
Last December acting Chief Justice Roxane George-Wiltshire SC threw out the petition on the grounds of late service, non-service, or improper service on former President David Granger. The petitioners appealed the decision to the Court of Appeal. The Appeal Court by majority decision ruled it could hear the petition.
Last July Vice President, Bharrat Jagdeo and Attorney General, Anil Nandlall, SC, approached the CCJ to rule that the Appeal Court has no jurisdiction to hear the matter. The CCJ by majority decision sided with the government. The dissenting ruling (of two Justices) stated the Full Court has jurisdiction to hear the matter not the Court of Appeal.
Below is the Hinds’ reaction to the ruling as articulated on his ‘Politics 101’ programme Wednesday evening :-
Where do I stand on this issue of technicality? I think it is not the only means by which a matter should be thrown out of court. The letter of the law, of course, said that if you serve late the matter could be thrown out, but my argument is that this is an important matter, this matter is about the legitimacy of a government, this is a matter that can overturn an election, and therefore overturn a government.
This is perhaps one of the most important matters that can come up in any country and to throw out such a matter on a technicality I think goes against the spirit of the law, and so therefore I disagree with the ruling of the apex court. I disagree with the ruling of the CCJ because I think and continue to say that our courts in the Caribbean have continued this tradition of conservatism when it comes to elections.
Law is not just letter, law is spirit. I said this morning and I am saying it again, this decision by the court could have serious implications for the stability of our country; it could have serious implications for the future of fair elections in Guyana; and the court should have taken into consideration the spirit of the law.
I heard one of the Justices commenting on [Attorney General and Minister of Legal Affairs] Nandlall’s decision to post the decision before the Court announced it, and that Justice was speaking to the spirit of the law. There is nothing stopping Nandlall. You cannot charge him for any crime, but the spirit of our jurisprudence demands that Nandlall should not post that decision. The court can invoke the spirit of the jurisprudence in sanctioning and roasting Nandlall, while it could not invoke the spirit of the law when it came to the substantive matter of the court.
I think the court erred again on the side of conservatism and the conservative ruling of the court could have political, racial implications for Guyana.
Thurgood Marshall, the first Black Supreme Court Justice in the United States and one of my heroes, referred to a constitution as a living document, and he saw himself in his role of the court not to contract rights but to expand rights. And this court [the CCJ] in the impact of its decision could lead to a contraction of rights in Guyana, denying the Opposition, denying one side in a disputed election their day in court, and those are the consequences of that decision.
Yes, they made a mistake by late service, but the court could remedy that, and the court decided on a technicality to deny one side in a disputed election their day in court. That is hardly justice.
I don’t question the integrity of the court. I don’t impose upon the court partisanship, but I think the court is a legal instrument. But it is a legal instrument that must take into consideration the sociological environment in which it is operating.
The Supreme Court in the United States, led by Earl Warren in 1954, stepped outside of the letter of the law and spoke to the spirit of the law, and the role of the law in social cohesion in the decision of Brown versus Board of Education. If it was left to the technicality of the law, there would have been no Brown decision.
I disagree vehemently with the CCJ. It’s ruling has the potential of setting Guyana back.