…says Justice Holder erred in deciding to hear APNU/AFC candidate’s case
The Full Court on Tuesday upheld an appeal filed by Opposition Leader Bharrat Jagdeo challenging an earlier decision by Justice Franklyn Holder to hear a case brought by A Partnership for National Unity/Alliance for Change (APNU) candidate Ulita Grace Moore.
Full Court Judges: Chief Justice (ag) Roxane George and Justice Nareshwar Harnanan
That course of litigation had sought to prevent a countrywide recount of the votes cast in the General and Regional Elections of March 2, 2020 under an agreement brokered by a Caribbean Community Initiative that had been agreed to by the major stakeholders: caretaker President David Granger, Opposition Leader Bharrat Jagdeo, and Chairperson of the Guyana Elections Commission, Justice (retd) Claudette Singh.
The arguments were heard by Chief Justice (ag) Roxane George and Justice Nareshwar Harnanan on Monday, and the
ruling was read on Tuesday by Chief Justice (ag), Roxane George. She also refused an application by Moore’s Attorney, Mayo Robertson, to stay the orders in order to facilitate an appeal.
The acting Chief Justice, in denying the application, said there was no chance of a successful appeal, but that did not stop Roberson and Attorney-at-Law Roysdale Forde from indicating to reporters that they have every intention of filing a challenge in the Court of Appeal.
Justice Franklyn Holder
As a consequence of the ruling, the injunction against the recount stands discharged, and Moore’s Fixed Date Application has been dismissed on ground that the High Court has no jurisdiction to hear it.
Justice Holder had, on Friday last, held that the High Court has jurisdiction to hear the injunction filed by Moore against the decision regarding a national recount, but the Chief Justice, in her ruling, pointed out that Justice Holder recognized that Section 140 of the Representation of the People Act prescribes an alternative statutory remedy to the concerns of the Peoples Progressive Party as it relates to validity of the elections results in the form of an election petition.
It was also noted that in the case before Justice Holder, the Guyana Elections Commission (GECOM), in its submissions to the court, acknowledged that it (GECOM) may not have jurisdiction to conduct a national recount, and had sought to give itself jurisdiction by amending the provisions of the Representation of the People Act by an order pursuant to the protocols under Section 22.
According to the acting Chief Justice, the petitioner Moore, in her petition to Justice Holder, had contended that any order for a recount must be within the constitutional jurisdiction of GECOM, while Justice Holder held that the High Court remains the guardian of the Constitution.
The acting Chief Justice also detailed to the court the circumstances that have led to the failure to have elections results one month after the polls, including difficulties with the declarations made by a Returning Officer, and the refusal to do recounts.
In handing down her ruling, she was adamant that Article 162 (1) (B) of the Constitution gives wide powers to GECOM to ensure an impartial and fair process, while Section 22 of Act 15 of 2000 supplies and supplements one of many mechanisms to ensure that there is compliance with Article 162.
According to Justice George, Section 22 of that law operationalises the functions of GECOM as mandated in Article 162, and specifically permits GECOM to address any difficulties encountered.
She noted that in situations such as these, where Parliament is dissolved, there is no need for an order to be subjected to the National Assembly to deal with matters arising from the election.
Accordingly, she ruled that it cannot be in the jurisdiction of the High Court to prevent GECOM from meeting and discussing whatever is relevant to ensure that the provisions of Article 162 for an impartial and fair conduct of an election are carried out.
For the High Court to do so would be to overreach and trespass on the functions of the Commission, she declared.
As such, the acting Chief Justice said, the Full Court is of the view that Justice Holder erred in failing to have his decision fully take into consideration, or apply the considering of, similar cases.
She concluded in her analysis that any decision and function of GECOM in determining the results of an election would fall under Article 162, which speaks to inquiry into acts of the Commission.
According to the Chief Justice, the court is of the view that filing of judicial review as done by Moore undermines the legislative process which affects finality in the election process, and, as such, the appeal is allowed and the order of Justice Holder: that he has jurisdiction to hear the injunction case, is vacated.
