Dear Editor,
Ever since the quest to find a legally acceptable Chairman for GECOM, Guyanese who have followed the happenings in and out of courts would have either been edified or confused by the many spurious and costly attempts by the APNU/AFC not only to misinterpret our Constitution but to rewrite it as well.
In the case of the unilateral appointment of Patterson as GECOM’s Chairman, the High Court had ruled that Granger acted constitutionally. The Appeal Court ruled similarly but fortunately, the matter went to the CCJ which ruled that the unilateral appointment was illegal. It must be recalled that Granger rejected three lists of nominees submitted by Jagdeo and then illegally and unilaterally appointed Patterson claiming erroneously that the Constitution gave him that right. The CCJ ruled that he breached Article 161 (2). Why did the Guyanese courts refuse to give effect to the simple literal interpretation of that Article? If the words are clear and unambiguous, they must be given the full effect. This is a basic rule of interpretation.
In the case of the No-Confidence Motion, the coalition had initially accepted its validity then later challenged it in the High Court. The coalition, through the then Attorney General and Legal Affairs Minister Basil Williams, who had argued that the majority needed for the motion to have been considered passed was 34 and not 33, which it contended was an “absolute” majority and not merely a “simple” majority. The High Court had ruled that the Motion was validly passed and that Cabinet should have immediately resigned.
The matter then went to the Court of Appeal. The Guyana Court of Appeal, by a majority decision on March 22, overturned the Chief Justice’s ruling, saying that the correct mathematical formula for finding the “absolute” majority was not used. While Chancellor Yonette Cummings-Edwards (ag) and Justice of Appeal Dawn Gregory agreed that 34 votes were required for the motion to be carried, Justice of Appeal Rishi Persaud dissented. The CCJ rejected Basil Williams’ argument and reversed the Appeal Court’s ruling in line with the High Court’s ruling. The coalition had wanted to insert the word ‘absolute’ into Article 106 (6). Again, it was a simple literal interpretation of the relevant Article but the Appeal Court again did not see it that way. Why was this rule not applied?
Then there was Mingo’s fraudulent tabulation which led to attempted fraudulent declarations twice by Lowenfield in complete violation of the Representation of the People Act. But in this case, a simple and literal interpretation sufficed.
Then came the recount which Granger and Jagdeo had agreed to be supervised by a Caricom high-level team. Having thus agreed, Granger then made his trademark about-turn and set up a court case to block the recount. The High Court then granted an interim injunction, blocking the recount relying on Articles 161 (b) and 162 (1). However, Justice Holder failed to look at Article 162 (1) (b) which states that the Commission shall “issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or any Act of Parliament on part of persons exercising powers or performing duties connected with or relating to matters aforesaid”.
However, the Full Court ruled that the High Court does not have the jurisdiction to hear the application filed by Moore for an injunction to block the Guyana Elections Commission (GECOM) from moving forward with plans to have a nationwide recount.
Moore had asked the court to inquire into the constitutionality of a decision made by GECOM to have a high-level Caricom team supervise a National Recount of the votes cast in the March 2 elections.
The Full Court on Monday discarded the decision by Justice Franklyn Holder in which he ruled that the High Court has jurisdiction to hear an application, despite objections from the opposing parties.
In the same vein, the Full Court discharged the interim injunctions granted by Holder and dismissed the substantive case before him.
The Chief Justice added that 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, quoting Section 140 of the Representation of the People Act. Added to that, Justice George cited Article 162 (1) (b) of the Constitution which gives GECOM powers to ensure the necessary actions are taken to ensure credible elections. Any redress must be by way of an election petition. Again, instead of giving a literal effect of 162(1) (b), it was ignored by Justice Holder. Justice Holder should have realised that Caricom’s inclusion ensured “impartiality, fairness and compliance” within 162(1) (b).
Then again, the recount, having been concluded, the coalition once again sought an injunction blocking the final declaration by the Chief Elections Officer. The majority decision placed emphasis on Article 177 (4) which states, “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that court under this paragraph shall be final.” What is clear is that the “validity” of an election of a President can only be done after a declaration. It is only then that the question of jurisdiction arises. This is clear and literal.
Both Justice Reynolds and Justice Gregory also held that an interpretation of the words “more votes are cast” in the context of Article 177 (2) (b) of the Constitution of Guyana is to be construed to mean more “valid” votes cast. Further, Reynolds said that the court could not grant injunctive reliefs at this time since the court could not determine whether Lowenfield’s report is valid or not.
No one can ever misinterpret the words of Article 177 (4), a vote must always be valid for it to be counted and that validity would have been ensured during the electoral process, moreover, the recount has already established the “valid” votes for all 10 Regions. Section 87 of the Representation of the People Act states which vote must be regarded as invalid and not be counted.
For the court to be asked to interpret this Act is superfluous and a waste of time.
The court cannot insert “valid” into the Article and rewrite the said Article. This is not unlike the “absolute” majority in the NCM case. The GECOM Chair has already given the directive to the CEO for the valid votes tabulated in the recount to be used for the CEO’s declaration.
Once again, it is GECOM’s role to bring an end to the electoral process by declaring the PPP/C the winner of the 2020 elections based on the Statements of Recount which were endorsed by GECOM itself, local and international observers and the high-level Caricom team.
Enough of the coalition’s abuse of the courts in futile attempts to rig the 2020 elections.
Yours sincerely,
Haseef Yusuf
