CCJ rules today on jurisdiction, appeal of COA decision
The Caribbean Court of Justice (CCJ) will today at 15:00h deliver its judgment in the case of Mohammed Irfaan Ali et al v Eslyn David et al.
The Court would first rule on whether it has jurisdiction to adjudicate the case and if it finds that it has jurisdiction, then it would rule on whether the Court of Appeal exceeded its jurisdiction when it inserted the word “valid” into the Constitution of Guyana and heard what was described as a “premature” elections petition.
The appeal was filed in the names of People’s Progressive Party (PPP) General Secretary Bharrat Jagdeo and Presidential Candidate, Dr Irfaan Ali and named David; Chief Elections Officer Keith Lowenfield; the GECOM Chair, Retired Justice Claudette Singh; GECOM; and Attorney General Basil Williams as respondents. Several persons sought the court’s leave to be added to the case. These are Mark France – A New and United Guyana; Daniel Josh Kanhai – The New Movement; Lenox Shuman – Liberty and Justice Party; Shazaam Ally – The Citizen’s Initiative; and Abedin Kindy Ali – Change Guyana.
During the case management hearing on June 25, the CCJ granted special leave for the A Partnership for National Unity/Alliance For Change (APNU/AFC) coalition to join the proceedings.
On July 1, the CCJ held the marathon virtual hearing of the substantive case where the PPP/Civic sought several reliefs stemming from the Court of Appeal’s ruling in the Eslyn David vs Chief Elections Officer et al. David had sought several reliefs under Article 177 (4) of the Constitution and among them was the question as to whether “more votes are cast” in Article 177 (2) (b) can be determined as “more valid votes”.
Interpretation of Constitution
In a 2-1 judgement, Appeal Court Judge, Justice Dawn Gregory and High Court Judge, Justice Brassington Reynolds found that more votes are cast meant more valid votes cast. By ruling in that fashion, the duo effectively disagreed with Appeal Court Judge, Justice Rishi Persaud who found that the Court of Appeal had no jurisdiction to entertain the case.
The Court also ruled that the Guyana Elections Commission (GECOM) has the responsibility to determine the validity of the votes.
This interpretation of the Constitution caused the PPP/C, an added respondent to the David matter, to move to the CCJ hours after the Appeal Court handed down its decision. The CCJ handed down interim orders preventing Chief Elections Officer Lowenfield, from presenting his statutory report to GECOM Chair Singh. This effectively barred GECOM from going ahead and declaring the results of the March 2 General and Regional Elections.
In their approach, for relief, to the CCJ, Ali and Jagdeo argued that the Appeal Court erred by interpreting Article 177(2)(b) by modifying the provision to include the word “valid” in circumstances where the Court of Appeal had no jurisdiction so to do. It was highlighted in the court document that “the request for the urgent intervention of the Caribbean Court of Justice is justified and necessary in order to prevent a clear and substantial miscarriage of justice and irreparable harm that will otherwise be done to the people of Guyana and the very institution of democracy in Guyana unless special leave to appeal is granted”.
During the substantive hearing, lead Counsel for Ali and Jagdeo, Trinidadian Senior Counsel Douglas Mendes laid out his reasons why the Appeal Court had no jurisdiction in its interpretation of Article 177 (2). He argued that the David submission before the Court of Appeal failed to reach the threshold for jurisdiction under Article 177(4) of the Constitution. He noted that while references were made to Order 60 of 2020, it cannot be applicable.
Mendes had argued that in order for David to invoke the Court of Appeal’s jurisdiction, her submissions would have had to question the qualification/validity of the President. Moreover, Mendes noted that a president must be elected before the court’s jurisdiction is invoked. He furthered that the only President at the time of the case was President David Granger, whose election was since 2015. Moreover, the general precedent is that validity of an election of a president is determined after said president is elected.
Further, Mendes also argued strongly that it is the High Court that has “exclusive jurisdiction” to address matters in relation to the validity of an election; however, this has to be done via an elections petition after the results of that election have been declared and a Government is sworn in.
Mendes pointed out that both the Court of Appeal and the High Court cannot have jurisdiction over “the same thing”. His argument is that if the Court of Appeal had no jurisdiction, then the finality clause excluding the matter from judicial review by the CCJ does not apply to the case.
On the issue of the CCJ’s jurisdiction, Trinidad and Tobago Senior Counsel Reginald Armour, who was hired by APNU/AFC Campaign Manager Joseph Harmon argued that the CCJ does not have unlimited jurisdiction, but rather it presides over sovereign states and thus must temper its jurisdiction based on these treaties. However, CCJ President, Justice Adrian Saunders questioned Armour’s grounds for arguing that the Court of Appeal had jurisdiction in the first place.
The claim by APNU/AFC that the Court of Appeal has exclusive jurisdiction to rule on David’s case rests largely on Article 177(4) of the Constitution, which states that, “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; and any decision of that Court under this paragraph shall be final.”
The Judge pointed out that there was an inherent contradiction, since Article 163 of the Constitution grants the High Court the exclusive jurisdiction to determine any question regarding the qualification of someone as a member of the National Assembly, and also jurisdiction to determine the legality of an election.