If court has jurisdiction to hear recount objection, it has jurisdiction to produce CEO’s SoPs – PPP

More than three weeks after the March 2, 2020 General and Regional Elections, Guyanese are no closer to hearing a declaration since litigants on both sides of the issue in the current court hearing in the matter have now challenged the jurisdiction of the court to even hear several pertinent matters.

Former Attorney General
Anil Nandlall

Attorneys for Lowenfield on Monday objected to the application by Opposition Leader Bharrat Jagdeo, to have the Chief Elections Officer, Keith Lowenfield, tender as evidence the entity’s Statements of Poll for Region Four and questioned the court’s jurisdiction to accommodate the request.
Lowenfield’s attorney, Neil Boston argued that the question of admitting the SoPs must be dealt with by way of petition.
Having heard GECOM challenge the court’s jurisdiction, attorneys for the Opposition countered their position and, in turn, challenged the court’s jurisdiction to hear the matter which was brought by A Partnership for National Unity/Alliance for Change (APNU/AFC) candidate, Ulita Grace Moore. That is, for the recount not to be consummated.
The Opposition Leader’s formal submissions were made by Attorney-at-Law Douglas Mendez via Skype from neighbouring Trinidad and Tobago.
Another of Jagdeo’s lawyers, Anil Nandlall subsequently briefed media operatives on the decision to challenge the court’s jurisdiction and told media operatives that it was Moore’s attorney that first raised the issue of the court’s jurisdiction “about whether the court can order the SoPs and then we countered with a jurisdictional issue ourselves.”

Justice Franklyn Holder

He said the court will at some point in time have to entertain the notion of whether it could, in fact, hear the case brought by Moore.
According to Nandlall, “that matter questions decisions made by the Elections Commission and decisions made by the Elections Commission under the Statute—Section 140 of the Representation of the People Act—is precluded from inquiry by any court.”
Section 140 (1) states: Except to the extent that jurisdiction in that behalf has been conferred, and the exercise thereof is required, by the Constitution or any law made under Article 3 thereof (which provides for the determination by the Supreme Court of Judicature of questions as to membership of the National Assembly and elections thereto) and save as hereinbefore provided to the contrary, no question whether any function of the Elections Commission or of any of its members has been performed validly or at all shall be enquired into in any court. (2) No evidence of any deliberations of the Elections Commission or communications between members of the Commission regarding its business shall be admissible in any court.

GECOM CEO Keith Lowenfield

He was adamant that “Ulita Moore’s entire case rests upon questioning, or asking the court to overrule decisions made by GECOM and to enquire into how those decisions were made and those things cannot be enquired into according to the Representation of the People Act.”
He said were the court to rule that it did not have jurisdiction to entertain the matter brought by the APNU/AFC candidate, then that would negate the need for the application by the Opposition Leader.
Nandlall surmised too that were the Judge to rule in favour of hearing the matter by Moore then he would also have to entertain the request by Jagdeo.
Seeking to rubbish GECOM’s defence, Nandlall told media operatives “we were able to show by statute that the same way that the Returning Officer (RO)—Clairmont Mingo—decision conduct and tabulation exercise was enquired into by the Chief Justice; it’s the same enquiry that we are asking the court to embark into in relation to the March 13 declaration of the RO.”
Meanwhile, Boston—in defence of the Commission’s position—told media operatives that Justice Holder in his decision yesterday opted to determine the court’s jurisdiction before proceeding to hear any of the substantive matters brought by Moore, Jagdeo and Holladar.
Justice Holder will be receiving submissions today and tomorrow from the litigants in order to determine jurisdiction into the Ulita Moore case.
As such, the determination of whether the SoPs can be tendered into evidence on discovery or not will be heard until after a decision into whether the court can entertain the case by the APNU/AFC candidate in the first place.
Jagdeo’s attorney, Douglas Mendez has since been directed to file his arguments on jurisdiction today after which GECOM will file its response on Thursday.
The hearing has since been scheduled to resume on Friday for further arguments to be made before Justice Holder.