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Caribbean Court of Justice

GYCV2020/002 - Mohammed Irfaan Ali et al v Eslyn David et al (Judgment)

July 8, 2020

The is the judgment delivery for the hearing held on June 30, 2020. Applicants are appealing the decision of the Court of Appeal of Guyana delivered on Monday 22nd June 2020. On Thursday 18th June 2020, before the Chief Elections Officer of the Guyana Elections Commission was scheduled to submit his Report on the results of the General and Regional Elections held on 2nd March 2020.

The First Respondent filed a Notice of Motion for several reliefs, among the reliefs sought was an interpretation of the words β€˜more votes are cast’ in Article 177(2)(b) of the Constitution of Guyana.

The Court of Appeal in its decision ordered that the words are to be interpreted as meaning β€˜more valid votes are cast’. The Court also ordered the decision be stayed for three days.

The Applicants, who were added as Respondents before the Court of Appeal, claim that the decision was wrong for many reasons, including that the Court of Appeal did not have the jurisdiction to hear and determine the Notice of Motion.

Last edited by Django
Original Post

As pointed out by Ramkarran, ANUG's lawyer, four (4) options remain:

1. CCJ does have jurisdiction, but say that the COA was right in its ruling;

2. CCJ does have jurisdiction, say the COA was wrong for lack of jurisdiction, but give no further directives;

3. CCJ does have jurisdiction, say the COA was wrong for lack of jurisdiction, and overturn the COA ruling; or

4. CCJ does not have jurisdiction.

With the way they were questioning APNU's lawyers, I won't be surprise if they say they have jurisdiction, but decide to defer to GECOM to do its job with or without Lowenfield's numbers. Any aggrieved party would then take it to the High Court.

Last edited by Rochelle

CCJ rules today on jurisdiction, appeal of COA decision

The Caribbean Court of Justice (CCJ) will today at 15:00h deliver its judgment in the case of Mohammed Irfaan Ali et al v Eslyn David et al.
President of the CCJ, Justice Adrian Saunders
The Court would first rule on whether it has jurisdiction to adjudicate the case and if it finds that it has jurisdiction, then it would rule on whether the Court of Appeal exceeded its jurisdiction when it inserted the word β€œvalid” into the Constitution of Guyana and heard what was described as a β€œpremature” elections petition.
The appeal was filed in the names of People’s Progressive Party (PPP) General Secretary Bharrat Jagdeo and Presidential Candidate, Dr Irfaan Ali and named David; Chief Elections Officer Keith Lowenfield; the GECOM Chair, Retired Justice Claudette Singh; GECOM; and Attorney General Basil Williams as respondents. Several persons sought the court’s leave to be added to the case. These are Mark France – A New and United Guyana; Daniel Josh Kanhai – The New Movement; Lenox Shuman – Liberty and Justice Party; Shazaam Ally – The Citizen’s Initiative; and Abedin Kindy Ali – Change Guyana.
During the case management hearing on June 25, the CCJ granted special leave for the A Partnership for National Unity/Alliance For Change (APNU/AFC) coalition to join the proceedings.
On July 1, the CCJ held the marathon virtual hearing of the substantive case where the PPP/Civic sought several reliefs stemming from the Court of Appeal’s ruling in the Eslyn David vs Chief Elections Officer et al. David had sought several reliefs under Article 177 (4) of the Constitution and among them was the question as to whether β€œmore votes are cast” in Article 177 (2) (b) can be determined as β€œmore valid votes”.
Interpretation of Constitution
In a 2-1 judgement, Appeal Court Judge, Justice Dawn Gregory and High Court Judge, Justice Brassington Reynolds found that more votes are cast meant more valid votes cast. By ruling in that fashion, the duo effectively disagreed with Appeal Court Judge, Justice Rishi Persaud who found that the Court of Appeal had no jurisdiction to entertain the case.
The Court also ruled that the Guyana Elections Commission (GECOM) has the responsibility to determine the validity of the votes.
This interpretation of the Constitution caused the PPP/C, an added respondent to the David matter, to move to the CCJ hours after the Appeal Court handed down its decision. The CCJ handed down interim orders preventing Chief Elections Officer Lowenfield, from presenting his statutory report to GECOM Chair Singh. This effectively barred GECOM from going ahead and declaring the results of the March 2 General and Regional Elections.
COA erred
In their approach, for relief, to the CCJ, Ali and Jagdeo argued that the Appeal Court erred by interpreting Article 177(2)(b) by modifying the provision to include the word β€œvalid” in circumstances where the Court of Appeal had no jurisdiction so to do. It was highlighted in the court document that β€œthe request for the urgent intervention of the Caribbean Court of Justice is justified and necessary in order to prevent a clear and substantial miscarriage of justice and irreparable harm that will otherwise be done to the people of Guyana and the very institution of democracy in Guyana unless special leave to appeal is granted”.
During the substantive hearing, lead Counsel for Ali and Jagdeo, Trinidadian Senior Counsel Douglas Mendes laid out his reasons why the Appeal Court had no jurisdiction in its interpretation of Article 177 (2). He argued that the David submission before the Court of Appeal failed to reach the threshold for jurisdiction under Article 177(4) of the Constitution. He noted that while references were made to Order 60 of 2020, it cannot be applicable.
Mendes had argued that in order for David to invoke the Court of Appeal’s jurisdiction, her submissions would have had to question the qualification/validity of the President. Moreover, Mendes noted that a president must be elected before the court’s jurisdiction is invoked. He furthered that the only President at the time of the case was President David Granger, whose election was since 2015. Moreover, the general precedent is that validity of an election of a president is determined after said president is elected.
Further, Mendes also argued strongly that it is the High Court that has β€œexclusive jurisdiction” to address matters in relation to the validity of an election; however, this has to be done via an elections petition after the results of that election have been declared and a Government is sworn in.
Mendes pointed out that both the Court of Appeal and the High Court cannot have jurisdiction over β€œthe same thing”. His argument is that if the Court of Appeal had no jurisdiction, then the finality clause excluding the matter from judicial review by the CCJ does not apply to the case.
Unlimited jurisdiction
On the issue of the CCJ’s jurisdiction, Trinidad and Tobago Senior Counsel Reginald Armour, who was hired by APNU/AFC Campaign Manager Joseph Harmon argued that the CCJ does not have unlimited jurisdiction, but rather it presides over sovereign states and thus must temper its jurisdiction based on these treaties. However, CCJ President, Justice Adrian Saunders questioned Armour’s grounds for arguing that the Court of Appeal had jurisdiction in the first place.
The claim by APNU/AFC that the Court of Appeal has exclusive jurisdiction to rule on David’s case rests largely on Article 177(4) of the Constitution, which states that, β€œThe 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.”
The Judge pointed out that there was an inherent contradiction, since Article 163 of the Constitution grants the High Court the exclusive jurisdiction to determine any question regarding the qualification of someone as a member of the National Assembly, and also jurisdiction to determine the legality of an election.

CCJ says has jurisdiction to hear appeal of elections case

CCJ sets aside CoA ruling, invalidates Lowenfield’s report


The Caribbean Court of Justice (CCJ) has accepted jurisdiction in the case filed by the Peoples Progressive Party/Civic’s Presidential Candidate Irfaan Ali and General Secretary Bharrat Jagdeo.

Ali and Jagdeo are challenging a ruling of Guyana’s Court of Appeal in the case filed by APNU/AFC supporter Eslyn David.

The Appeal Court, last month, assumed jurisdiction and ruled that β€œmore votes cast” in the Guyana Constitution means β€œmore valid votes cast”.

However, the PPP/C challenged the decision at the Trinidad-based Regional Court contending that the Appeal Court’s pronouncements have β€œplunged the law in total confusion and it is now no longer clear how an election of members of the National Assembly is to be challenged and how the election of the President can be challenged.”

CCJ’s President Justice Adrian Saunders said that the CCJ has jurisdiction since the Court of Appeal issued a judgment outside of Article 177 (4). Justice Saunders noted that the Appeal Court essentially embarked on an exercise to interpret Order 60 of 2020 and not Article 177 (4) of the Constitution.

On June 22, the Court of Appeal, in a 2:1, judgment had ruled that the Constitutional phrase β€œmore votes are cast” can be interpreted as β€œmore valid votes are cast”. This essentially inserted the word β€œvalid” in Article 177 (2) (b) of the Constitution.

The β€˜flawed’ interpretation was presented by Appeal Court Judge, Justice Dawn Gregory and High Court Judge, Justice Brassington Reynolds while Appeal Court Judge, Justice Rishi Persaud had found that the Court does not have the jurisdiction to entertain the case.

Furthermore, the CCJ invalidated the recent report submitted by Chief Elections Officer Keith Lowenfield, in which he had dumped over 115,000 votes.

@Rochelle posted:

One step at a time, people. The fat lady hasn't sung just yet.

You thought the fat lady sung since March 4. You claimed that the CCJ did not have jurisdiction to hear the case. You claimed that the CoA decision cannot be appealed. I mentioned that the fact that a president was not declared, that Article 177(4) could not be invoked. You disagreed. If you are an attorney, I should become Chief Justice. Just my observations.

@Gilbakka posted:

GECOM told to ensure Lowenfield obeys its instructions to prepare results based on recount


Retired judge Claudette Singh has asked for a meeting of the Guyana Elections Commission (GECOM) following Wednesday’s decision of the Caribbean Court of Justice (CCJ); the CCJ ruled that it is for GECOM to ensure that the Chief Elections Officer Keith Lowenfield submits a report in accordance with the direction he was given.

The meeting is tentatively set for 1 p.m. Thursday.

β€œIt was inconsistent with the constitutional framework for the CEO (Lowenfield) or GECOM to disenfranchise tens of thousands of electors in a seemingly non-transparent and arbitrary manner…,” Justice Adrian Saunders, president of the CCJ stated.

Justice Adrian Saunders, President of the CCJ

Lowenfield was on June 16 told by Justice Singh to prepare an elections report with the tabulation of the national vote recount and calculate the Parliamentary seats assigned to each party. But he failed to do that and relied on a Court of Appeal ruling of June 22 to decide on his own which votes are valid. But the CCJ threw out both the Court of Appeal’s decision and Lowenfield’s.

β€œIt is for GECOM to ensure the CEO submits a report in accordance with its direction of June 16 in order to proceed along the path directed by the laws of Guyana,” Justice Saunders stated.

GECOM has not met since Lowenfield presented his report, which discarded over 115,000 votes and handed victory to the Coalition APNU+AFC instead of the PPP, as the recount clearly showed.

Justice Saunders in reading the judgement of the Court noted that what the Court of Appeal in its majority ruling was to embark on an exercise of interpreting Order 60, the recount order, and then apply it to the clear words of 177 (2) (b) that the party for which more votes are cast wins the elections.

However, the CCJ ruled that the Constitution required no refinement.

β€œThat article in plain and simple language has always said what it meant and meant what it said,” Justice Saunders stated.

The CCJ ruled that the concept of valid votes is well known to the legislative framework in Guyana. He said there is a transparent process that weeds out invalid votes and that was done during the count, such as by removing spoilt ballots and so on.

Justice Saunders said there was no further need to reference valid votes in the laws or constitution of Guyana.

β€œBy the unnecessary insertion into Article 177 (2) (b) the word valid, the Court of Appeal impliedly invited the CEO to engage unilaterally in a further and unlawful validation exercise that trespassed on the exclusive jurisdiction of the High Court,” Justice Saunders stated.

He added: β€œIt has been four months since elections were held and the country has been without a Parliament for well over one year. No one in Guyana would consider this to be a satisfactory state of affairs. We express the fervent hope that the would quickly be a peaceable restoration of normalcy.”