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April 8 ,2021

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Chief Justice Roxane George-Wiltshire

Chief Justice Roxane George-Wiltshire

-CJ sets April 26 as tentative date for decision

April 26th has been tentatively set by Chief Justice Roxane George-Wiltshire SC, to rule on the petition filed by the main opposition APNU+AFC which is challenging the results of last year’s general and regional elections.

The Opposition had filed two petitions challenging the results. Back in January, however, Justice George-Wiltshire dismissed the other petition after finding that the Party’s presidential candidate David Granger was not served on time.

The other petition on which she is now set to rule, came up yesterday for arguments, during which Senior Counsel John Jeremie on behalf of the petitioners advanced that Section 22 of the Election Laws Amendment Act (ELAA) by which the Guyana Elections Commission (GECOM) created Order 60 for the recount of votes from the March 2nd, polls was unlawful.

Douglas Mendez                         Anthony Astaphan          

  

Attorney General          John Jeremie

Anil Nandlall

His advancements were, however, met with objections from attorneys for the respondents who, in rebutting his submissions, said that the Commission was in fact empowered by the very Act, to resolve the difficulties with which it had been confronted.

Jeremie’s argument on behalf of petitioners Claudette Thorne and Heston Bostwick, is that Order 60 is “bad” in law because it was brought into force by an unlawful piece of legislation—Section 22 of the ELAA.

The petitioners want the court to determine among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.

Senior Counsel Douglas Mendes, Anthony Astaphan and Attorney General Anil Nandlall who represent various respondents in the matter, have all, however, rejected Jeremie’s position, arguing that where certain difficulties arise in respect to an election, Section 22 empowers the Commission to resolve the difficulties.

Jeremie’s contention on the other hand, is that the difficulties surrounding the results which arose, ought to have been dealt with by way of elections petition, and not any order by GECOM under Section 22.

In response to a series of questions from the Chief Justice, Jeremie agreed that regarding the credibility of the election results, there were difficulties with which the Commission had been confronted; but held resolutely to his view that those needed to be dealt with by the High Court’s exclusive jurisdiction through a petition.

His resolute position is that, that power could not be delegated by Parliament to GECOM, and so Section 22 which so facilitates, is therefore unlawful.

Trinidadian attorney Mendes who represents now President Irfaan Ali and Vice President Bharrat Jagdeo; and Astaphan of Dominica, who represents the Commission both argued that Parliament, by virtue of Section 22 delegated to GECOM, the power to make provisions as it sees fit, to resolve those difficulties for expediency.

Attorney General (AG) Anil Nandlall SC who is also a respondent, agreed with Mendes and Astaphan’s submissions that in accordance with Section 22, GECOM is empowered to resolve the difficulties with which it was confronted.

The three attorneys advanced that Section 22 grants GECOM the authority to amend by Order several pieces of legislation so as to resolve any difficulty related to the implementation of the Elections Act.

Five-month process

During the five-month process which finally culminated with an official declaration of results on August 2nd, last year GECOM invoked this legislative provision and drafted Order 60, which outlined a procedure to be used for the recount of all votes cast on March 2nd.

During his responses to the Chief Justice, Jeremie at some points seemed to be saying that his attack was only on Section 22 and not on Order 60 itself. When asked for clarity, he then sought to explain to Justice George-Wiltshire that it is the petitioners’ contention that the Order is also bad.

He then introduced an alternative that even if Order 60 was good, GECOM derogated from the provisions of the very Order it promulgated.

Referencing an undertaking given by Chairperson of the Commission, Justice of Appeal (retired), Claudette Singh that a recount would be done, the Chief Justice enquired from Jeremie whether this was unlawful, to which he responded in the affirmative.

He said that under the Representation of the People Act (RoPA), the Chairperson could not so do; and added that even if the Court were to find that Order 60 was constitutional, the election still could not be said to have been conducted in conformity with the Constitution, RoPA, ELAA and other election laws.

Astaphan in direct response said that GECOM would have been obliged to act to resolve the difficulty in the tally of the votes surrounding the initial count and the recount.

He advanced that the Commission is endowed with that power under Section 22 which attained its standing by virtue of Articles 162 and 163 of the Constitution, all on which he said Order 60 in return rests as well at the RoPA and was “enacted in good faith,” to resolve difficulties it was presented with. Anything else, he said, would have been a descent into chaos “and so the recount was needed as a resolution.” 

Astaphan said that not only is Section 22 constitutional, but that there is nothing pleaded by the petitioners to show that there had been any substantial non-compliance or even a simple breach at best.

He said, too, that the petitioners are unable to say that GECOM had not been confronted with difficulties, while adding that the Commission therefore rightly used its discretion by way of the recount.

Jeremie while responding to questions from the Court had also contended that the declarations initially made and recorded on Statements of Poll (SoPs) could have only been overturned by an election court hearing a petition, and not by any Order of GECOM.

Astaphan, however, said that it was precisely because of the difficulties surrounding those declarations which needed to be resolved, that Order 60 was enacted by GECOM which facilitated the recount in a bid to move pass the difficulty.

Apex court

Jeremie was asked by the Chief Justice whether he believed that the apex court—the Caribbean Court of Justice (CCJ) had endorsed the recount and that it could only be nullified by an election petition. He responded in the affirmative; but drew a distinction to say that the CCJ was not pronouncing on the legality of the Order or on Section 22.

The apex court did not have the benefit of those arguments he contended, while stating “it would not be permissible for us to read into what the CCJ may have meant by endorsed.”

Mendes in his submissions sought to make clear his position that neither Order 60 nor Section 22 was unlawful, and if the court so finds as well, then the case for the petitioners ends there and the petition ought to be dismissed.

He said that Parliament delegating power to the Commission under Section 22 is neither a usurpation of the exclusive jurisdiction of the High Court nor does it amount to excessive delegation as is claimed by the petitioners.

Mendes then goes on to argue that even if the court finds that Section 22 is unlawful, it would then have to look at what constitutes and amounts to substantial non-compliance to so warrant. On this point the attorney said the petitioners “do not even get off the ground with this,” as they have presented no evidence to so substantiate.

Continuing on the issue of non-compliance, Mendes said that the petitioners are unable to say that the elections were either a “sham” or that it did not accurately reflect the will of the people.

Mendes said that if the court does not agree with his position on the legality of Sections 22 and the advancements made on substantial non-compliance, the petitioners would then still have to show that the results of the election had been affected by some unlawful act, which he said they are unable to do.

In his address to the court, the AG adopted the arguments submitted by Mendes and Astaphan.

He, however, went further to argue that GECOM really did not need Section 22 to act to resolve the difficulties with which it was confronted as it is so empowered even under Article 162 of the Constitution.

Nandlall submitted that GECOM under that Article, has the power to resolve issues in the absence of a sitting Parliament, so that even if the court were to find that Section 22 is unlawful, Article 162 would still stand.

Referencing case law authority, Nandlall had said in his submission to the court that Article 162(1) (a) (b) gives wide powers to GECOM to ensure an impartial and fair election process through the exercise by GECOM of general direction and supervision over the administrative conduct of all elections.

“Section 22 of Act No. 15 of 2000 merely supplements or provides one of many mechanisms for ensuring that there is compliance with art 162 in this regard. In our view, [Section] 22 is one of the provisions which operationalizes the powers and functions of GECOM as mandated in art 162. Section 22 specifically permits GECOM to address any difficulty encountered,” Nandlall had quoted from the case he referenced, adding that it was clear that Parliament contemplated that difficulties may arise even after the elections since it granted GECOM the authority to make orders to address any difficulty unto three months from the date of the election.

Consequently, the AG informed the Court that while Section 22 can stand by itself it ought not to be functionally divorced from Article 162 (1)(b) of the Constitution since it is to add further ‘teeth’ to Article 162.

Parliament, he argued, with the manifest intendment of conferring on GECOM that enormous breadth of power expressed in section 22 of the ELAA to complete the discharge of its constitutional mandate of declaring final results in an election.

He used this same point to dismiss contentions that the ELAA conflicts with the Constitution and violates the doctrine of separation of powers.

He said that the petitioners have cited no Article in the Constitution with which Section 22 is inconsistent.

Following the almost four-hour hearing, the Chief Justice announced April 26th, as the tentative date to deliver her ruling.

The results of a national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.

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The APNU/AFC is doing a good job.  They are saying that "polls are unlawful" and the "legislation is unlawful.  They also said some time ago that the PPP lost the election because 31 is greater than 33.

@Ramakant-P posted:

The APNU/AFC is doing a good job? They are saying that "polls are unlawful" and the "legislation is unlawful.  They also said some time ago that the PPP lost the election because 31 is greater than 33.



Maybe if you read the post, you will see that it is a question asked for the fake arguments the opposition is making.

You once called for the overthrow of the PPP by the army.  That is crazy.

Last edited by Ramakant-P
@Ramakant-P posted:

The APNU/AFC is doing a good job.  They are saying that "polls are unlawful" and the "legislation is unlawful.  They also said some time ago that the PPP lost the election because 31 is greater than 33.

@Ramakant-P posted:

Maybe if you read the post, you will see that it is a question asked for the fake arguments the opposition is making.

You once called for the overthrow of the PPP by the army.  That is crazy.

Like Ram gone loco. He responding to himself.

@Ramakant-P posted:

The APNU/AFC is doing a good job? They are saying that "polls are unlawful" and the "legislation is unlawful.  They also said some time ago that the PPP lost the election because 31 is greater than 33.



Maybe if you read the post, you will see that it is a question asked for the fake arguments the opposition is making.

You once called for the overthrow of the PPP by the army.  That is crazy.

This same Judge pronounced on the elections last year and the PNC denigrated her ruling then so they are just wasting their time. Her pronouncement this time around will not change the current circumstances of that election.

Ruling on election petition case set for April 26

Apr 08, 2021 News, Source - Kaieteur News Onilne - https://www.kaieteurnewsonline...se-set-for-april-26/

Kaieteur News – Dominican Senior Counsel, Anthony Astaphan, the lead attorney for the Guyana Elections Commission (GECOM), has rebuffed the claims outlined in the election petition challenging the outcome of the March 2, 2020 General and Regional Elections results.

https://www.kaieteurnewsonline.com/images/2021/04/Astaphan.jpg

Dominican Attorney, Anthony Astaphan S.C.

Following the oral presentations yesterday, the Chief Justice (ag), Roxane George-Wiltshire, announced that she had hoped to deliver judgment within two weeks but the arguments and discussions rose additional time for consideration.Moreover, she decided to set April 26, 2021 for the ruling on Elections Petition number #88.In their written submission to the High Court, Petitioners Claudette Thorne and Heston Bostwick, are contending that Section 22 of the Election Laws (Amendment) Act is unconstitutional and that Order No. 60 (the recount order) of 2020 is invalid, null, void, and of no effect.

https://www.kaieteurnewsonline.com/images/2021/04/CJ.jpg

Chief Justice (Ag), Roxane George- Wiltshire.

As such, Thorne and Bostwick have asked the High Court to vitiate the results of the March 2, 2020 elections since in their view, it was substantially not in compliance with the law in relation to the conduct of the elections in Guyana.However, Astaphan told the Chief Justice (ag) yesterday that there was no breach.

According to the GECOM attorney, “Section 22 got its constitutional authority and genesis from the Constitution… Order 60 is entirely consistent with the Constitution also and the purpose was transparent, enacted in good faith and intended to remove the difficulties to allow for a declaration.”

The lawyer noted that since there was difficulty with the elections, Order No. 60 of 2020 was created by virtue of Article 162 (1) (b) of the Constitution and Section 22 of the Election Laws (Amendment) Act to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count.

https://www.kaieteurnewsonline.com/images/2021/04/jeremie.jpg

Trinidadian lawyer, John Jeremie SC.

In those circumstances, Astaphan told the court, “We are not conceding any breach at all.”

Astaphan argued too, that the petitioners needed to prove total non-compliance with the law, since they have not done so in their written or oral submissions.

The lawyer made specific reference to Article 162 (1) (b) of the Constitution of Guyana.

He noted that “The Acts of Parliament must be read subject to the overriding powers of the Constitution which give GECOM discretion on how the law was to be applied to allow for fair, impartial interpretation of the law.”

Further, the lawyer cited the ruling of Justice Claudette Singh in the case of Esther Pereira versus the Chief Elections Officer.

Astaphan noted that in her ruling, Justice Singh made abundantly clear that in Guyana a mere breach of the law is not sufficient to invalidate the results of an election.

He stressed that “…total non-compliance with the law as held by Justice Singh where she said that no ID [card]… was a substantial non-compliance with constitutional provisions for free and fair elections in Guyana, because it would have had the effect of denying persons the right to vote simply because they did not have an ID card, when in fact, the law would have permitted them to vote, once registered, without an ID card.”

The lawyer noted that for the petitioners to show that there was total non-compliance

“A mere breach is not enough. It has to be a substantial non-compliance that introduces something; introducing a principle that is hostile to the fundamental constitutional principle,” he emphasized.

As such, Astaphan told the Chief Justice that even if she finds that there was a breach, there were no consequences which affected the conduct or result of the count, and therefore the election petition should be dismissed.In his submissions, lead attorney for the petitioners, John Jeremie, asked the court to determine, among other things, questions of whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.

He pointed to a series of claims that he believes would lead the court to discredit the constitutionality of the elections laws or the lawfulness of the recount order, which led to the triumph of the ruling People’s Progressive Party Civic (PPP/C).

According to Jeremie, Order 60 is ultra vires of Article 163 of Guyana’s constitution because the settlement of election disputes has to be settled by an election petition. He added that if GECOM could not make laws, then the order is constitutionally bad.

LAWS OF GUYANA

CHAPTER 1:01

CONSTITUTION OF THE CO-OPERATIVE REPUBLIC OF GUYANA ACT

Source - http://www.oas.org/juridico/sp...guy_constitution.pdf

162. (1) The Elections Commission shall have such functions connected with or relating to the registration of electors or the conduct of elections as are conferred upon it by or under this Constitution or,subject thereto, any Act of Parliament; and, subject to the provisions of this Constitution, the Commission—

   (a) shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and

   (b) 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 of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.

(2) Notwithstanding anything to the contrary in this Constitution,if the Elections Commission is satisfied that the holding of an election pursuant to the provisions of paragraph (2) of article 60 or article 160(2) on the day appointed therefor would be attended, either generally or in a particular area, by danger or serious hardship, it may, after consultation with the Prime Minister and the Leader of the Opposition, by notice published in the Gazette—

   (a) postpone the holding of the election to a day specified in the notice; or

   (b) postpone the voting in any area specified in the notice to a day so specified.

Ohhhhh, Gawd! Dem ah gimme hedake an bellyake awl at de saim tyme! Dese perfeshunul teevin lawyur dem!

De colishun gaan.an de lawyurz dem, dey tek ovur! Teefin nebber dun! Yu tun neckst, Jag, yuh durtee rass!

Last edited by shallyv
@Ilum posted:

This same Judge pronounced on the elections last year and the PNC denigrated her ruling then so they are just wasting their time. Her pronouncement this time around will not change the current circumstances of that election.

The PNC does not have any facts to argue about so they are arguing about the law.

@shallyv posted:

Ohhhhh, Gawd! Dem ah gimme hedake an bellyake awl at de saim tyme! Dese perfeshunul teevin lawyur dem!

De colishun gaan.an de lawyurz dem, dey tek ovur! Teefin nebber dun! Yu tun neckst, Jag, yuh durtee rass!

Behold the voice of an ignorant person who talks trash all the time. Nothing you say above make sense.

@Mitwah posted:

Do you know how stupid you sound? Your shoopidity has no kure.

You do not have anything to say so you ridicule me. Is that what you have become? I haven't seen any post of yours that made sense.

Last edited by Ramakant-P

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