Notice of Motion should be dismissed – PPP/C in submissions

…has no merit, will cause COA to fall into constitutional error

The People’s Progressive Party/Civic (PPP/C) has stated that the Notice of Motion seeking to block the Guyana Elections Commission from declaring the results of the March 2 elections should be dismissed since there is no jurisdiction for the Court of Appeal to entertain it.

PPP General Secretary Bharrat Jagdeo

This was indicated in the PPP/C’s – which has emerged as the party with the most votes from the 2020 elections – written submission to the Appeal Court that was filed on Friday. Today, the court will hear oral submissions from the various parties in the matter that was filed by APNU/AFC supporter, Eslyn David.
The party’s leaders, Presidential Candidate Dr Irfaan Ali and General Secretary Dr Bharrat Jagdeo, were joined in the legal proceedings on Friday with Trinidadian Senior Counsel Douglas Mendes leading their case in association with Attorneys-at-Law Anil Nandlall, Devindra Kissoon and Sanjeev Datadin.

PPP/C Presidential Candidate, Dr Irfaan Ali

According to SC Mendes, the grounds of the Motion are “all without merit and invite this Court of Appeal to fall into serious constitutional error… Every complaint which has been raised is capable of being in an election petition which will ultimately be subject to the oversight of this Court of Appeal.”
In his submissions, Mendes argued that the Court has no jurisdiction under Article 177 (4), under which the Motion was filed, to hear the matter since Parliament failed to make provision for the exercise of the court’s jurisdiction.
Article 177 (4) 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 that 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.

Douglas Mendes SC

“As such, there is no provision which indicates whether the Applicant is a person by whom proceedings for the determination of any question mentioned in Article 177 (4) may be instituted in the Court of Appeal, nor is there any indication as to the manner in which and the conditions upon which proceedings for the determination of any such question may be instituted in the Court of Appeal. These Respondents respectfully submit that this omission is fatal to the creation of the jurisdiction intended to be vested in the Court of Appeal under Article 177 (4),” the Senior Counsel posited.

Premature
He further submitted that the challenge filed is premature as no President has been elected – which is only done by GECOM making such a declaration – thus the court’s jurisdiction under Article 177 (4) cannot be invoked.
“While Dr Irfaan Ali is the Presidential Candidate in respect of the list which obtained the greatest number of votes, he has not yet been so declared by the Chairman of GECOM. Were it otherwise, President Granger would no longer be in office, and Dr Irfaan Ali would now be the President… There is simply no basis for any determination under Article 177 (4) as the election is a sine qua non to the exercise of any Article 177 (4) jurisdiction. This application is premature,” he outlined.
Another point that was underscored by SC Mendes is that the nature of the relief sought by David in the Motion falls outside of Article 177 (4), which he noted is “carefully delineated and restricted”, and is not at large.
He noted that the relief does not ask the court to determine any question as to the validity of an election of a President and, therefore, without more, cannot be considered under Article 177 (4).
“There is no jurisdiction under Article 177 (4) for the Court of Appeal to invalidate a presidential election except where such invalidation depends upon the qualification of the candidate or the interpretation of the provisions of the Constitution. There is no jurisdiction under the Article for the Court of Appeal consider the question of the validity of a presidential election which depends on an interpretation of other laws or items of delegated legislation, such as any Order of GECOM, nor can it embark upon a generalised roving commission as to the credibility of votes. But that is precisely what the Applicant invites this Honourable Court to do in this case,” the SC argued.
Mendes further posited that the relief asking for an interpretation of the words “more votes are cast” is also not an exercise that can be undertaken under Article 177 (4) since it is not the interpretation of the Constitution, but is really an encroachment upon the jurisdiction of the High Court under Article 163.
He went on to note that, “If, as is asserted by the Applicant, GECOM or the CEO could legitimately engage in a determination as to validity of the votes cast, and that the Court of Appeal under Article 177 (4) could also make such a determination, it would effectively render the well-established machinery of the election petition otiose… The jurisdiction of an election court is well established in Guyana and in the wider Commonwealth.”
According to Mendes, the machinery of an election petition cannot be usurped by any action of GECOM or the Chief Elections Officer or of the Court of Appeal acting under Article 177 (4), which is precisely what the Applicant is asking the Court to do.
“The Applicant wishes to have a determination that the recount and therefore the entire electoral process is invalid for the reasons given in the complaints made by [APNU/AFC]. Those complaints include allegations of persons voting who were dead or had migrated and of missing election documents. For these reasons, it is said that the election was not credible and the recount should not be acted upon. But these are precisely the types of questions which the election court is given exclusive jurisdiction to determine under Article 163. They are not questions which the Court of Appeal is to determine under Article 177 (4),” the Trinidadian SC contended.
In any event, he added, it is clear that there is simply no evidence for the court to determine which votes are “not valid and credible” as it is being asked to do in the Motion.
“This test of validity and credibility which is not found in the Constitution, cannot be met on the basis of the evidence which Ms Eslyn David has placed before the Court… She also references the report of the CEO which also lists various complaints which the CEO had apparently observed. None of this is evidence of invalidity. It is evidence only of the views and opinions which certain persons hold. It is impossible for the Court of Appeal, receiving evidence in such a summary fashion, to make any sort of determination as to whether any invalidity occurred,” Mendes submitted.