Chief Justice denies GECOM’s bid to prevent ‘elections challenge’
…says court has jurisdiction to decide if RO’s Region 4 declaration valid
…notes that court cannot shirk its duties
The Guyana Elections Commission (GECOM) on Sunday lost its bid to prevent Chief Justice (ag) Roxane George from hearing an application which states that the Returning Officer (RO) for Region Four (Demerara-Mahaica) violated the statutes when he declared results for that district in violation of the process prescribed under Section 84 of the Representation of the People Act.
The Chief Justice gave her ruling at about 14:30h amidst a packed courtroom including representatives of political parties, local and international observers and several members of the legal fraternity among others.
The Chief Justice was adamant that cognisant of certain restrictions, there is a precedent where the court’s supervisory jurisdiction can be invoked to ensure the smooth operation of elections proceedings or process and “a court cannot shirk its duty in this regard.”
Having found that there was prima facie evidence to support the court having jurisdiction to hear the matter, she ruled in favour of the application and held that the injunctions against GECOM be maintained as absolute, until a final determination of the matter.
Attorneys for GECOM have since been given until Tuesday morning to file an affidavit in response, after which the litigation will continue.
The Chief Justice, in prefacing her ruling, recounted arguments made by GECOM through Attorney-at-Law Neil Boston, SC, on behalf of the Elections Commission and Senior Counsel, Douglas Mendes.
Attorneys Anil Nandlall and Norman Robin Hunte also appeared on behalf of—Holladar—the applicant, while attorney Roysdale Forde, an APNU/AFC candidate, while not formally entered for the proceedings, appeared alongside Boston.
Prior to her ruling, the Chief Justice firstly admonished litigants to respect the ruling of the court since at the end of the day one of the parties would not be in agreement.
Boston in his arguments on Saturday had contended that the application should have had to wait until the completion the entire process and await the declaration of the overall final results before making a challenge by way of an elections petition.
He contended that the law did not provide for a “two-stage attack” against the elections process.
Attorneys for the application have, however, argued that the matter of an election petition was not relevant since that speaks to a challenge of the election result when what is being called for in the application is that the RO complies with the process as set out in the law.
The Chief Justice. in handing down her ruling, said that some of the orders being sought by the application would be better dealt with through an election petition but that the court has jurisdiction to determine whether the Returning Officer (RO) had complied with Section 84 of the Representation of People Act.
In handing down her ruling, the Chief Justice relied heavily on a previous ruling by the then Chief Justice Desiree Bernard in the case of Joseph Hamilton vs Chief Elections Officer.
That case had dealt with the compliance of the very Article under contention—compliance with Section 84 of the Representation of People Act.
Chief Justice Bernard had at that time found that the validity of the results can only be challenged by way of the elections petition and Justice George noted that in that case, the applicant’s claim did not speak to the validity of the election but rather the process.
She said that “The situation is no different,” and the case clearly contemplated judicial review during the process.
Chief Justice George further noted that there were several case law precedents where the supervisory jurisdiction of the court can be invoked prior to the declaration of the results.
Senior Counsel Mendes, prior to the adjournment of the matter, raised a concern over the absence of the Chief Elections Officer (CEO), Keith Lowenfield—named as a respondent in the case.
This is in addition to bringing to the attention of the court, a missive by Lowenfield to GECOM Chairperson, retired Justice Claudette Singh, where he indicated that a report had been completed and is ready to be gazetted and requested a meeting of the Commission.
He told the court that the missive appears to imply that the CEO was in blatant violation of the court orders via the injunction and asked that the situation not be countenanced by the court especially since the matter was ongoing.
He told the court the applicant’s team was concerned that Lowenfield might have acted unlawfully and in contempt of the court and further that the final report completed would contain information that he was prohibited from using.
GECOM’s attorney pointed out a response from the Chair, however, which was circulated by the entity’s Public Relations Officer, Yolanda Ward.
That communication, according to Boston, indicated that the Chairperson had no intention of failing to comply with any of the court orders and that no meeting for the Commission would be held. The CJ sidestepped the issue of Lowenfield’s contempt of the court for compiling a “final” elections report.
Boston subsequently told media operatives that as it relates to the declaration of the 2020 General and Regional Elections, “everything has been put on hold.”
Asked about the impact of the litigation with regards to the 15-day deadline imposed on GECOM to provide completed results, Boston told media operatives he was confident a ruling would be handed down before that time.
Nandlall, another of the attorneys appearing on behalf of Holladar, the applicant, in his brief to the local media corps pointed to the fact that the court managed to extract from Boston, an undertaking that the CEO would not undertake to proceed to do anything with the report he has compiled and called for the Commission to approve.
“That report was prepared in violation of one of the injunctions,” which restrained Lowenfield and RO, Clairmont Mingo, from proceeding to prepare any final results, unless and until the Section 84 of the Representation of the People Act had been complied with, according to Nandlall.