Some sections of society felt they were dealt a blow with the Caribbean Court of Justice’s (CCJ) ruling the Guyana’s Court of Appeal does not have jurisdiction to hear Election Petition No .99. The three-to-five decision was handed down on October 19. The panel comprised Justices Winston Anderson, Maureen Rajnauth- Lee, Jacob Wit, Denys Barrow and Peter Jamadar. Justices Barrow and Jamadar issued the dissenting ruling.
Whereas some rejoiced the ruling sided with the High Court’s to dismiss a case, as important as the election petition, on the ground of procedural error thereby denying petitioners the right to be heard, others see the ruling as the CCJ’s overreach into Guyana’s election, guided by the belief that in election matters our local court is the last resort.
Village Voice reached out to Mr. Roysdale Forde, SC, one of the lawyers who represented the petitioners, to aid the public in understanding the decision.
Below represents the conversation.
Question: The CCJ’s judgment on Election Petition No. 99 was almost three weeks ago, which would have given you some time to critically review the written ruling. What is your general opinion of the ruling?
Answer: The judgment is a very profound judgement in the sense that it is the first time, I believe, an appellate court would have decided these issues. It is quite a disappointment that the decision went the way it did.
I looked at the judgments of Justice Jamadar and Justice Barrow, and clearly, they articulated a different view from Justices Anderson, Rajnauth- Lee, and Wit. It is Justice Jamadar and Barrow’s view, based on the importance of the appellate court exercising a supervisory jurisdiction of the court and on the entire interest of justice and rule of law under the Constitution of Guyana.
Question: Could you provide some specifics?
Answer: I recall a specific part of Justice Jamadar’s judgment when he said that it is inconsistent with the rule of law to allow a government to come to power, the election petition to be dismissed, and the courts to be disarmed by an interpretation of the constitution that denies the court the right to verify whether an election petition could have been dismissed, lawfully or not.
When you really think about what the CCJ would have decided in the ruling it is the antithesis of rule of law. It is strange that the Court could have come to such a conclusion. You could actually contemplate situations where a party can win an election, an election petition could be filed, the election petition could be based on a number of fraudulent acts, as in this case, and simply, the judge dismisses the election petition.
What the decision really does is to insulate and protect a party that comes to power by fraudulent means. Look at the minority judgment, which is in fact a dissenting judgment, and is a very strong dissent by Justices Barrow and Jamadar. Their judgment is saying the court must have the power to check to see whether what the petitioners presented happened. But the majority judgment is saying that it is really not something that should be considered as a matter of course, but the law specifically provided for it.
Question: The split decision points to disagreement among the judges. What is your take on this?
Answer: I believe there was a fundamental disagreement among the five judges. This may explain why we took so long to get the judgement, but it was clearly a fundamental disagreement among the five. (The court heard the case on July 19)
Justice Barrow, for example, stated that the starting point of the consideration for the issues in this case for him was Article 163 (4) (d) of the Constitution; a provision which empowers Parliament to pass legislation, to provide for the practice and procedure in relation to election petition matters, and election petition jurisdiction conferred on the High Court.
Justice Barrow is simply saying that Section 42 of the Elections Validity Act which provided the High Court with the power to treat an election petition, as an ordinary matter, meant that when the court treated it as such an appeal in his opinion existed.
Justices Barrow and Jamadar agreed the petitioners should not have gone to the Appeal Court but the Full Court. But fundamentally both agreed that in these circumstances the right of appeal existed. The majority of three judges never addressed any argument in relation to Article 163 (3) (d) as evident in paragraph 70 of the ruling.
That paragraph reads: “We respectfully agree with these observations. The proper interpretation of s 42 of the Elections Validity Act, as well as s 6 of the Court of Appeal Act, must entail construing the powers vested in the High Court in a manner consistent with the constitutional provisions on jurisdiction.”
I believe Justices Wit, Anderson, and Rajnauth- Lee simply said that they adopted an approach which simply meant that it must be construed strictly. The implications of that sort of approach is very significant where we see the consequences of it.
Justice Jamadar spent significant portions of his judgment trying to explain the importance of interpreting the constitution in a very expansive way, in a way that is consistent with what is required. Justice Jamadar went so far to say that Guyana intended for Guyanese to have a right of appeal. Justice Jamadar expressly stated this is what Guyana wanted but the majority Justices felt differently, so this is where we are.
Question: If you are asked to explain the majority’s decisions to the ordinary man, how could you best do that?
Answer: I believe that this decision will stand as a blotch on the record of the CCJ, with the greatest of respect. I believe it represents an irresponsible diversion from the very progressive path we have seen the CCJ making over the years, especially in relation to Guyana, the constitution and what our constitution means. This decision stands out as not in keeping with the CCJ’s progressive jurisprudential thought, especially what you would expect from an apex sport in 2022.
Attention is drawn to Fisher against Attorney General of Bahamas, a very well-known case, where the Privy Council said when interpreting the constitution, it must not be interpreted as a tabulating legalism. And it was interesting to see in Justice Jamadar’s judgment he resorted to that sort of language to show the restrictive interpretation that was being placed on the Constitution and the law governing this matter, that rendered the entire process inconsistent with the very purpose of the court, which is to supervise electoral matters.
I want to bring to the public’s attention the local case, Irfaan Ali against Eslyn David (2020), where the CCJ decided that it assumed jurisdiction, when the Constitution specifically said that the Court of Appeal’s decision was final.
I believe the October 19 decision is going to come in for some serious criticism in the legal world, both by courts in the region and around the world, and by academics in the region and around the world. It is quite the sort of decision you would not expect from an apex court in 2022.
