Court would be supporting illegality if appeal upheld – Jagdeo, Ali submit
…case to be heard today
Judges sitting at the Court of Appeal will today hear the oral submissions by lawyers as the Misenga Jones v Guyana Elections Commission et al appeal commences.
Jones, with the support of the A Partnership for National Unity/Alliance For Change (APNU/AFC), is appealing the Chief Justice’s ruling that the figures from the National Recount should be the basis for the declaration of the March 2, 2020 elections.
Appellate Judges, Justices Dawn Gregory and Rishi Persaud in association with High Court Judge, Justice Priya Sewnarine-Beharry will preside over the case. Proceedings are expected to commence at 10:00h with the attorneys representing APNU/AFC agent, Misenga Jones making their submissions first.
Jones, through her attorneys, Trinidadian Senior Counsel John Jeremie, APNU/AFC candidate Roysdale Forde, Keith Scotland, Mayo Robertson and Rondelle Keller – is seeking to have the decision of Chief Justice (ag) George overturned, which was delivered on Monday, in the case seeking to compel the Guyana Elections Commission (GECOM) to utilise the 10 declarations as the basis for announcing the winner of the March 2 elections.
CJ George dismissed Jones’ application for judicial review on the grounds that the issues were res judicata, which means that they have already been ventilated and pronounced upon by a competent court and cannot be relitigated. In total, Jones had sought 28 reliefs from the court, but all, save and except for the issue of jurisdiction, were dismissed.
She had reiterated that Chief Elections Officer, Keith Lowenfield is not a lone ranger and is subjected to the direction of the Commission. Additionally, she expressly stated that the figures from the 33-days Caricom-observed National Recount should form the basis for the declaration of the results.
In the appeal filings, Jones is contending that the Chief Justice erred in law when she dismissed the case.
Jones’ application listed 23 grounds for the appeal and states, among other things, that the CJ erred in law when she held that the issues raised the case were res judicata; when she failed to find that the Chair of GECOM and/or GECOM had acted outside their constitutional and/or statutory power.
The People’s Progressive Party (PPP) General Secretary, Bharrat Jagdeo and Presidential Candidate Dr Irfaan Ali – named respondents in Jones’ appeal, also filed a cross-appeal.
In their submissions to the court, the PPP/C legal team – comprising Trinidadian Senior Counsel Douglas Mendes, former Attorney General Anil Nandlall, Devindra Kissoon, Marcia Nadir Sharma, and Clay Hackett – argued that the court would be facilitating an illegality if it were to make any order which effectuates the clearly fraudulent declarations made by District Four (Demerara-Mahaica) Returning Officer, Clairmont Mingo.
Mingo had tampered with the results of the electoral district to reflect a win by the APNU/AFC coalition. In fact, on March 13, Mingo – in the execution of his statutory functions – declared that the APNU/AFC received 136,057 votes in District Four when in fact the party accumulated just 116,941 votes.
The 33-days-long National Recount of the ballots exposed this clear attempt at altering the will of the electorate when it proved that Mingo inflated the coalition’s number by 19,116 votes and deflated the PPP/C’s by just over 3000.
Jagdeo and Ali’s attorneys submitted that Chief Elections Officer (CEO), Keith Lowenfield is an officer of GECOM with no constitutional mandate and as such he is subservient to GECOM. They noted that the Commission is also empowered to remove and exercise disciplinary control over him as mandated by the Constitution. The Mendes-led team furthered that there is no provision in the Constitution or any other law which gives the CEO the power to direct GECOM while specifically alluding to Article 226 (1) which states that GECOM is to remain an independent body and should not to be subject to the direction or control of anyone.
Giving way to illegality
In arguing the point that the issues raised in Jones’ appeal have already been dealt with by both the Court of Appeal and the Caribbean Court of Justice (CCJ), the lawyers reminded that it was the same Appeal Court, in the case of Ulita Moore et al, which ruled that the High Court had no jurisdiction, except on an election petition, either to determine the constitutionality of Section 22, or the validity of GECOM’s decision to order a recount, or consequently the validity of the recount which was held.
The National Recount came into effect after an agreement was brokered by then Caricom Chair, Barbados Prime Minister Mia Mottley between caretaker President David Granger and Opposition Leader Bharrat Jagdeo. As a consequence of that agreement, GECOM gazetted Order 60 of 2020 (the Recount Order) and made subsequent amendments.
In light of that, the Ali-Jagdeo legal team told the court that until the High Court on an election petition determines otherwise, Section 22 must continue to be treated as valid law in accordance with the presumption of constitutionality; Order 60 must continue to be treated as valid subordinate legislation; and the recount carried out thereunder must continue to be treated as a valid determination of the votes cast at the election.
The PPP/C attorneys noted that Jones is attempting to distinguish the court’s decision in the Moore case and to diminish its binding nature by pointing out that Order 60 was not in existence when Moore was decided and that she was not a party to those proceedings. That contention was rubbished when the lawyers pointed to the laws of res judicata.
It was furthered that, despite the clear and specific instructions of the GECOM Chair, Retired Justice Claudette Singh, for the CEO to use the recount figures to compile the final report, this has not been done. Instead, Lowenfield has been unilaterally reverting to his own figures inclusive of Mingo’s fraudulent numbers.
Jagdeo and Ali’s lawyers pointed out to the court that Justice George was right in her ruling that the CEO is duty-bound to follow the instructions of the Commission and submit his report in accordance with the results of the recount.
“If, therefore, Mingo’s declaration is to be acted upon and the court accedes to the appellant’s request to grant relief requiring the Mingo declaration to be given effect to, the court would be furthering and facilitating the commission of an unlawful act; the rights of the majority of the electors to representatives of their choice would be infringed; the will of the majority of electors who wished to install the PPP as their Government would be frustrated; and the constitutional right to representative democracy would be undermined,” the lawyers noted in their submission.
The contentions are supported by the fact that Mingo’s declarations have been proven fraudulent by the recount numbers and that if GECOM is mandated to use those numbers then it would be acting unlawfully and in violation of the electorate’s constitutional right to vote.
Jagdeo and Ali’s argument is that the Court of Appeal does not have the jurisdiction to entertain the appeal and it should be referred to a duly constituted election court. They noted that the case is about who should hold the presidency and the reins of Government while the High Court, on an election petition, sorts out the disputes as to the validity of votes and the recount.
It is furthered that while the High Court has limited jurisdiction to intervene in an elections matter, that jurisdiction does not exist in this case.
The submissions added that the Constitution has reposed trust and power in GECOM to supervise and bring General Elections to a successful conclusion and it and Parliament have endowed GECOM with ample powers to enable it to achieve that result. The CEO is not entrusted with these powers and must not be allowed to determine the result of the election in defiance of GECOM’s orders.
Embattled CEO Lowenfield indicated that he would not be participating in the proceedings.
The figures from the 33-day recount exercise show the People’s Progressive Party/Civic (PPP/C) with a victory having secured 233,336 votes while the APNU/AFC obtained 217,920 votes. (G2)