GRENADIAN Queen Counsel, Dr. Francis Alexis

June 28 2020

Source

…Dr. Francis Alexis, QC says PPP/C’s appeal at CCJ has no real prospect of success
…asserted that Guyana’s constitutional provisions ought not be overruled
…says Constitution, Elections Laws clearly provide for valid votes

By Svetlana Marshall
GRENADIAN Queen Counsel, Dr. Francis Alexis – the Caribbean’s leading authority on constitutional law – said not only was the Court of Appeal right in ruling that Guyana’s President ought to be elected based on valid votes in accordance with the Constitution and Electoral Laws of the country, but there can be no challenge to that decision, even at the level of the Caribbean Court of Justice (CCJ). To do so, would be to overrule the constitutional provisions provided for in Articles 177 (4) AND 162 (1) (b) of the Constitution. On that basis, he said the application filed by the People’s Progressive Party/Civic (PPP/C) for special leave to appeal the decision of the Court of Appeal should not be granted.

The PPP/C last Tuesday (June 23) applied to the Caribbean Court of Justice (CCJ) for special leave to appeal a decision of the Court of Appeal to interpret the words of Article 177 (2) (b) to mean “more valid votes are cast” in determining the President following an Election.

Dr. Alexis – the author of Changing Caribbean Constitutions – in offering his legal opinion on the ‘Jurisdiction relating to Article 177 (4) of the Constitution of the Co-operative Republic of Guyana,’ said Article 177 (4), undoubtedly, gives the Court of Appeal ‘exclusive jurisdiction’ to hear and determine any question relating to the validity of an election of a President based on two limbs – qualification of any person for election or interpretation of the Constitution.

As indicated by the Court of Appeal, in its majority decision in the case – Eslyn David v the Chief Elections Officer and others, Dr. Alexis said those two limbs have to be read disjunctively and not conjunctively. “The Court of Appeal therefore properly decided that it had jurisdiction to entertain the application by David,” the Queen Counsel said.

He said not only was the Court of Appeal correct in establishing jurisdiction but also in its interpretation of the Constitution. Dr. Alexis submitted that both the Constitution and the Representation of the People Act provide for election of a President based on valid votes.
“The mantra of Article 162(1) (b) of the Constitution and its constitutionalising the ROPA (Representation of the People Act) whose section 96(1) requires that there be calculated ‘valid votes’ is that a person be elected as the President on the basis of only valid votes,” the Constitutional Queen Counsel said while iterating that the Court of Appeal was absolutely correct in interpreting ‘more votes’ in Article 177(2)(b) as meaning ‘more valid votes.’

Article 177(4) makes the decision on the interpretation of 177(2)(b) of the Constitution ‘final.’

“A final appellate court, as is the CCJ, undoubtedly has a wide inherent jurisdiction to grant special leave to appeal to it. But such a court does not grant such leave when doing so would overrule constitutional provisions. Granting such special leave in this case would involve CCJ in overruling both Article 177(4) of the Constitution which makes the ruling of the Court of Appeal ‘final’ and Article 162(1)(b) of the Constitution constitutionalising the command in section 96(1) of ROPA that what is calculated is the total number of ‘valid votes’. CCJ should not thus overrule both those provisions of the Constitution,” Dr. Alexis reasoned.

He said from all indication, the appellants – PPP/C’s General Secretary Bharrat Jagdeo and Presidential Candidate, Irfaan Ali – have no reasonable, real prospect of success in an appeal, on the basis that the decision of the Court of Appeal is final, and based on the undeniable fact that Article 162 (1) (b) of the Constitution and the Representation of the People Act mandate a calculation of valid votes. The application for special leave to appeal, he said, should therefore be refused.

“Coming out of the process, GECOM ordered a national recount of all the ballots cast in the election. That recount has been held. The report of the Chief Elections Officer to GECOM on that recount affords a proper formula for calculating the valid votes cast at the election, and so enabling the declaring of a President and members of the National Assembly,” he said.

The case filed by Jagdeo and Ali will come up before the CCJ on July 1, 2020 before a panel of judges led by President of the CCJ, Justice Adrian Saunders. The court has agreed to accept written and oral submissions on the issue of jurisdiction, the application for special leave and on the substantive matter simultaneously. It will, however, make a determination on the issue of its jurisdiction before ruling on any other matter.

Last edited by Django
Original Post

Act 2 of 2000

Alteration of article 177 of the Constitution.

Article 177 of the Constitution is hereby altered by the substitution for paragraph (2) of the following paragraph –

“(2) where – (a)there is only one Presidential candidate at the election; or (b)there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.”



Article 177 (4) wasn't touched when this alteration was made.

Simply no Court outside of Guyana have Jurisdiction ,regarding Articles  in the Constitution of the President ,the Head of State. That will be infringement on a Country Sovereignty.

Also take note of the Powers of the CEO

Attachments

Last edited by Django

Mohabir Anil Nandlall

DR. FRANCIS ALEXIS IS PLAYING A DANGEROUS GAME

Today, Sunday’s Edition of the Chronicle, lead headline loudly screams, “Dr. Francis Alexis, QC says PPP/C appeal to the CCJ has no real prospect of success”. Dr. Alexis is indeed a decorated legal scholar. He is a former lecturer of law at the University of the West Indies, a former Attorney General of Grenada, a Queen’s Counsel and a lawyer of over four decades standing. Importantly, he currently holds the position of Deputy Chairman of the Regional Judicial and Legal Services Commission. The Chairman of this body is ex officio the President of the Caribbean Court of Justice, Justice Adrian Saunders.

The stated mission of the Regional Judicial and Legal Services Commission is to appoint judges of the Caribbean Court of Justice. Dr. Alexis appeared in the Guyana Court of Appeal for the Applicant, in the case of Eslyn David v Chief Elections Officer and others. It is common knowledge that this matter is pending, on appeal, to the Caribbean Court of Justice. Its hearing is scheduled to take place on July, 1, next Wednesday.

Over the centuries that English Law has evolved, evolving with it, have been certain doctrines commonly called “conventions”. With the passage of time, they have graduated to assimilate the force of law and indeed, form an integral part of the body corpus of English Law. These conventions supplement the law to protect institutions of the law, the legal system itself, the rule of law and cannons of fundamental justice.

When the British Legal System was supplanted in Her Majesty’s colonies so were those conventions, deeply ingrained. When these colonies were granted independence, some of these conventions were codified in the independent constitutions of these territories. However, those conventions that were not codified, still form part of the rule of law in these territories. Guyana and the Caribbean are among those territories whose legal systems devolved in the manner just outlined.

One of these conventions is that lawyers who sit on bodies that appoint Judges should not appear before those Judges. A logical corollary of this principle is that they should not make any public statement, adopt any posture or commit any acts which may be viewed as influencing, or intending to influence, litigation pending before Judges whom they have appointed or has a responsibility to appoint. This convention is grounded deeply in the doctrine of natural justice and forms part of that network of principles that protects and ensures judicial independence and fundamental justice. Dr. Alexis, in my respectful view, has egregiously violated these principles. Not only has he made a public statement but has expressed his legal opinion on how the case should be decided, exposing himself to the obvious accusation that he is attempting to prejudice the outcome of the proceedings.

An ordinary citizen who violates the sub judice doctrine is likely to be hauled before the courts for contempt. Dr. Alexis is not an ordinary citizen, in this regard. He has done much worse. The truth is he should never have appeared in the proceedings, in the Court of Appeal of Guyana, knowing of the likelihood of it journeying to the CCJ. His entire involvement in this case is highly reprehensible and must be condemned.

I know that apologists for APNU/AFC will rush to cite the public remarks made by Prime Minister Mia Motley, QC. There is simply no basis for comparison. Ms. Motley made absolutely no reference to the legal proceedings, but simply spoke on matters that are in the public domain which she has a right to do, in any free society. If Dr. Alexis wishes to remain a respectable jurist, he must withdraw his remarks with an appropriately worded statement admitting this gross misadventure. It is this type of conduct which fuels the fears of those Caribbean citizens who cling desperately to Her Majesty’s Privy Council.

Speaking for myself, I am assured by my belief in the integrity and independence of the CCJ. I take solace from the fact that the CCJ had no difficulty in rejecting Dr. Alexis’s argument in the Guyana Court of Appeal, in the No-Confidence Motion cases, where he submitted that the term “majority” means “absolute majority” in Article 106 of the Constitution of Guyana. Similarly, to think that “votes” in Article 177 of the Constitution means anything other than “valid votes” is simply tautologous, as the framers of the Constitution obviously recognize that the legislative scheme which governs the electoral process ensures the weeding out of invalid votes, prior to counting. Therefore, what are counted or recounted are only valid votes. The layman understands this much, more so, Judges of the highest Court in the Region.

This is the same man who was quick to say the CCJ had jurisdiction, which led to the CCJ explicitly admonishing all attorneys to ensure they not peddle this idea to their supporters. The CCJ was speaking directly to Nandlall and his social platform.  

Isn't it fascinating that Nandlall didn't object to the QC's opinion, just to the fact that he made such a statement. Even he knows its a losing battle. 

@Rochelle posted:

This is the same man who was quick to say the CCJ had jurisdiction, which led to the CCJ explicitly admonishing all attorneys to ensure they not peddle this idea to their supporters. The CCJ was speaking directly to Nandlall and his social platform.  

Isn't it fascinating that Nandlall didn't object to the QC's opinion, just to the fact that he made such a statement. Even he knows its a losing battle. 

No smart lawyer will discuss their case in public, especially when it’s before the court... and you don’t know this gal, take some schooling from Anil. 

@Rochelle posted:

This is the same man who was quick to say the CCJ had jurisdiction, which led to the CCJ explicitly admonishing all attorneys to ensure they not peddle this idea to their supporters. The CCJ was speaking directly to Nandlall and his social platform.  

Isn't it fascinating that Nandlall didn't object to the QC's opinion, just to the fact that he made such a statement. Even he knows its a losing battle. 

Isn't it interesting how Nandlall criticizes Prof. Alexis for allegedly violating the sub judice rule while he, Nandlall, engages in it?  

Last edited by Totaram

The Guyana Courts of appeal voted 2 blacks to one Indian for Granger to be sworn in as president. This was based on the fraudulent numbers provided by Lowenfield and Mingo. If Granger comes out as the winner, it would be because the CEO cheated.  Granger would be sworn in as President and Guyanese would get more of the same. The farmers will continue to leave the country and the remaining sugar estates will be closed. Businesses will also be closed. Sanctions will create chaos all over the country.   Be prepared.   The country is already bankrupt.

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