CCJ quashes Court of Appeal’s decision

…says it had no jurisdiction to hear APNU/AFC supporter’s case
…”irregularities” must be filed in elections petition

The Caribbean Court of Justice (CCJ) on Wednesday ruled that it has jurisdiction in the case filed by the People’s Progressive Party/Civic (PPP/C) Presidential Candidate, Dr Irfaan Ali and General Secretary Bharrat Jagdeo, and ruled that Guyana’s Court of Appeal had no jurisdiction to hear the matter filed by A Partnership for National Unity/Alliance For Change (APNU/AFC) supporter Eslyn David, much less interpret the Recount Order.
In a 2:1 majority ruling, the Appeal Court last month incorrectly assumed jurisdiction and ruled that “more votes cast” in the Recount Order meant “more valid votes cast”. The Order was made under the Constitution of Guyana and the Elections Laws (Amendment) Act No 15 of 2000 and was invoked by the Guyana Elections Commission (GECOM) to guide the national recount exercise that was conducted to verify the results of the March 2 General and Regional Elections.
The PPP/C had challenged the decision at the Trinidad-based regional court, contending that the Appeal Court’s pronouncements have “plunged the law in total confusion and it is now no longer clear how an election of members of the National Assembly is to be challenged and how the election of the President can be challenged.”

Jurisdiction of Appeal Court
Following a marathon hearing last week, the CCJ ruled on Wednesday that “The Court of Appeal lacked jurisdiction to make the orders that were made. Those orders were not made under Article 177 (4) of the Constitution.”
The unanimous decision of the five-member CCJ panel was delivered by its President, Justice Adrian Saunders, who explained that there was nothing in David’s application to the Appeal Court that could have triggered that court’s jurisdiction under Article 177 (4) which states: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution….”
Justice Saunders said in Wednesday’s ruling that Article 177 (4) was always intended to operate after the President had been elected. He explained that any questions on the validity of the President’s elections under this Article were never intended to impugn or to relate to the validity of ballots cast by the electors.
In fact, he noted that Article 177 (4) only affords jurisdiction to the Appeal Court if the question raised as to the validity of an election of a President depends upon the qualification of any person for election or the interpretation of the Constitution.
“It is evident from the nature of Ms David’s complaints and the issues she placed before the Court of Appeal that the questions raised by her did not depend on the qualification of any person for election or on the interpretation of the Constitution. Ms David’s complaint was really about the impact of Order 60 and about the conduct of GECOM. What the Court of Appeal majority did was to embark upon an exercise of interpreting Order 60. The Court of Appeal majority considered the effect of Order 60 on the responsibilities of GECOM and then applied that to the clear words of Article 177 (2) (b),” he stated.
Article 177 (2) (b) states: “where… there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential Candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly-summoned meeting.”
According to the CCJ President, Article 177 (2) (b) requires no refinement.
“That Article in plain and simple language has always said what it meant and meant what it said. There was no need for an interpretation of that Article or any other Article of the Constitution. Accordingly, there was nothing in Ms David’s application to trigger the Court of Appeal’s jurisdiction under Article 177 4.”

Valid votes
Moreover, the court did not accept the argument by David’s lawyer that because the Appeal Court interpreted “more votes cast” to mean “more valid votes cast” at Article 177 (2) (b), then that decision fell under the preview of Article 177 (4).
Justice Saunders explained that the concept of “valid votes” has a particular meaning in that context. He noted that this phrase appears several times in the Representation of the People Act (ROPA) including at Section 96, which calls on the Chief Election Officer to calculate “the total number of valid votes of electors which have been cast for each list of candidates”.
According to the CCJ President, validity in this context “mean and could only mean” those votes that, on their face, are valid. This, he said, was determined in a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots, and was conducted in the presence of the duly-appointed candidates and counting agents of contesting parties.
“It is after such invalid votes are weeded out that the remaining “valid” votes count towards a determination of not only the members of the National Assembly, but, incidentally as well, the various listed Presidential Candidates,” he stated.
Justice Saunders went on to say in the decision that if the integrity of a ballot or the manner in which a vote was procured, is questioned, then that would be a matter that “must” be pursued in an elections petition in the High Court after the elections were concluded and a winner declared.
“There is not further need to reference valid votes, because subject to Article 163, which is triggered by an elections petition after the election, the relevant validation process has already been completed. By the unnecessary insertion into Article 177 (2) (b) of the word “valid”, the Court of Appeal impliedly invited the CEO to engage unilaterally in a further and unlawful validation exercise that trespassed on the exclusive jurisdiction of the High Court established by Article 163,” he posited.
The CCJ President further contended that for the CEO or GECOM, by extension, to disenfranchise tens of thousands of electors in a “seemingly non-transparent and arbitrary manner” without the due processes established in Article 163 and Validation Act” was inconsistent with the constitutional framework.
In handing down its ruling, the CCJ assumed jurisdiction in the matter, citing Article 173 (4) which gives Parliament the power to make the CCJ the final court of appeal for Guyana. It further “recognised and reaffirmed” its duty as Guyana’s final appellate court to ensure adherence to the Constitution.
This is taking into consideration that the Court of Appeal would not have jurisdiction since the validity of the election did not depend on a question of the qualification of the person or the interpretation of the Constitution.
“The [CCJ] adjudged that the provisions of Article 177 (4) were not triggered by the Ms David’s application to the Court of Appeal. Since the Court of Appeal had no jurisdiction to hear the application brought by her, the Finality Clause in Article 177 (4) was inoperable and under the laws of Guyana, this Court had jurisdiction to hear and determine the application by Messrs Ali and Jagdeo, and to set aside the decision of the Court of Appeal,” Justice Saunders ruled.
All the parties in the case have two weeks to make written submissions on the issue of cost to the court.