CJ to rule on APNU/AFC election petition on April 26
– GECOM asks court to throw out case
Chief Justice Roxane George on Wednesday heard oral arguments in the APNU+AFC lone election petition left standing, and has set April 26 to hand down her ruling.
But this was not before the Guyana Elections Commission, through its lawyer, Dominican Senior Counsel Anthony Astaphan, asked the High Court to throw out the petition, insisting that it did nothing wrong by conducting the National Recount using Order 60 of 2020 – which was used to carry out the recount exercise – following the “difficulties” GECOM was experiencing.
“Our primary case, My Lady… is that there is no breach [of the Constitution] …We stand by our written submissions, fully and absolutely, that there was no breach… We’re not conceding any breach at all,” Astaphan contended during Wednesday’s virtual hearing.
He dismissed the argument of petitioners Claudette Thorne and Heston Bostwick that Order 60, otherwise known as the Recount Order, is invalid, null, void, and of no effect.
Order 60 was created pursuant to Section 22 of the Elections Laws (Amendment) Act and Article 162 of the Constitution of Guyana to resolve irregularities, anomalies, and discrepancies coming out of the March 2020 General and Regional Elections, and to determine a final credible count before declaring the results of the elections, which are required by the Representation of the People Act and the Constitution.
Thorne and Bostwick argue that Order 60 and Section 22 are unconstitutional, and as such, the August 2, 2020 declaration of the results from the recount, which led to a win for the Irfaan Ali-led People’s Progressive Party/Civic, should be vitiated since there was total non-compliance with the law regarding the conduct of elections.
But the GECOM lawyer maintained that there is nothing unconstitutional about Order 60 or Section 22, as is being contended by the petitioners – a position which was also held by Trinidadian Senior Counsel Douglas Mendes, representing Representative of the PPP/C List of Candidates, then Opposition Leader and current Vice President Bharrat Jagdeo, and Attorney General Anil Nandlall, SC representing the State.
SC Astaphan insisted that Order 60 was entirely consistent with Section 22 and Article 162, and was not only “transparent” and “enacted in good faith”, but was intended to remove the difficulties that prevented GECOM from declaring the final results of the March 2, 2020 election, which was at the time being stalled for several months.
“In the face of these difficulties, what was GECOM to do? What should GECOM have done with the intransigence of the Returning Officer and the Chief Election Officer, and the difficulty to get cooperation for resolution of the matter. GECOM… was literally, by the Constitution and statue, obliged to act, otherwise chaos would have resulted,” the Dominican Senior Counsel contended.
Astaphan went on to reject the claim by the petitioners’ lawyer, Trinidadian Senior Counsel John Jeremie, that there were no guidelines under Section 22 and 162 for the recount to be conducted.
He argued that, “GECOM could only possibly act under [Section] 22 if there was a difficulty being experienced in the course of the election, which includes, of course, the count and the recount, and the request for recount. If there was intransigence on behalf of election officers or otherwise, that creates a difficulty for the final declaration to be made. Under Section 22, GECOM literally has a mandatory obligation to act, cause it says “shall”, if these things appear to it as necessary or expedient for it to remove the difficulty.”
Moreover, the Dominican Senior Counsel pointed out that Section 162 (1) foresaw the possibilities of intransigence, misconduct and disobedience from public officers or persons performing elections duties that would prevent either compliance or would prevent the final process of the election to be declared.
He maintained that if these provisions did not exist, then GECOM could not have acted in the manner it did; but since they do exist, the Commission had a “constitutional obligation” to act.
Further, SC Astaphan outlined that even the Caribbean Court of Justice (CCJ) had gratified, whether expressly or indirectly, the lawfulness of Order 60 for the purpose of removing the difficulties, which he said were “slowly but surely driving Guyana into a severe social and political upheaval.”
While the petitioners argued that CCJ did not explicitly consider the constitutionality of Order 60 and Section 22, GECOM’s lawyer contended that had there been any issues, then Guyana’s apex court would have mentioned it and would not have gone “literally out of its way to give the stamp of approval to the recount and to Order 60.”
A similar point, among a host of others, was submitted by SC Mendes during his arguments at Wednesday’s hearing. He added that there were no objections to Order 60 being used to effect the recount, and in fact, all the political parties, including the APNU+AFC, had participated fully in the exercise.
“You will have to take into account that the recount itself was done with the consent of all of the political actors involved, as the preamble of Order 60 indicates. But there is no complaint in these proceedings, in any event, that anyone was disenfranchised or that anyone who was not entitled to vote was promoted to vote,” he posited.
Mendes further argued that, “You will have to judge whether there was a sham election in the context where the Court of Appeal itself said early…that Section 22 was unconstitutional. That was the backdrop to Order 60 and the recount that was held. And you have to do against the backdrop of the Court of Appeal at the very least, permitting a recount under Section 22, except that it could not be under the supervision of CARICOM (Caribbean Community). That is the context in which the recount was taken, against the backdrop of an implicit, if not an expressed, authorisation by the Court of Appeal that you could proceed.”
The Trinidadian lawyer contended that it seems to be “disproportionate and excessive” to ask the court now to say that the elections, the recount of the ballots is “in sham”.
Meanwhile, SC Nandlall also argued in court that under Article 162 of the Constitution, GECOM has the authority to issue Order 60.
Against this backdrop, they argue that the petitioners have failed to present any evidence upon which the results of the elections can be invalidated.
Nandlall, in his submissions to the Court, cited case laws and underscored that Section 22 of the Election Laws (Amendment) Act was promulgated because framers of the Constitution thought that Article 162 was inadequate and needed to be boosted to handle situations like the 1997 election controversy.
The Chief Justice will hand down her ruling in the case on Monday, April 26, 2021 at 11:00am.