CCJ rules Court of Appeal decision and Lowenfield’s election report invalid

The Caribbean Court of Justice (CCJ) Wednesday afternoon ruled that Guyana’s Court of Appeal did not have jurisdiction, or the power, to interpret Article 177 (2) of the Constitution and that the use of the June 22 report by Chief Elections Officer Keith Lowenfield to come up with a report that shows APNU+AFC winning the elections instead of the PPP was illegal and his report should be discarded.

The ruling by the CCJ sets up a showdown at the Guyana Elections Commission (GECOM) with Lowenfield, who manages the country’s elections, already demonstrating open defiance of the strict orders of retired judge Claudette Singh, the Chair of the Commission.

Will he now obey the Chair and prepare a report showing the results of the national vote recount or will Justice Singh be forced to take drastic action to get him to comply or find another way to get the results declared?

The CCJ required that Lowenfield complies with the direction he was given by the Chair of GECOM to produce a report in accordance with the results of the national vote recount.

The CCJ ruled that Lowenfield acted unlawfully when he sought to use the Court of Appeal decision to unilaterally dump tens of thousands of votes, affirming that free and fair elections are the lifeblood of any democracy.

President of the CCJ, Justice Adrian Saunders in reading the judgment of the Court noted that what the Court of Appeal did 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).

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

“That article in plain and simple language has always said what it meant and meant what it said,” Justice Saunders stated.

He said there was nothing in David’s application to trigger the Court of Appeal’s jurisdiction.  The CCJ ruled that the concept of valid votes is well known to the legislative framework in Guyana. Justice Saunders said there is a transparent process that weeds out invalid votes and that was done during the count, by removing spoilt ballots and so on.

Justice Saunders said there was no further need to reference valid votes and the unnecessary insertion of the word in Article 177 (2). As such, he said the Court of Appeal had unilaterally trespassed on the jurisdiction of the High Court.

He said what the Court of Appeal did was to invite the Chief Elections Officer to disenfranchise tens of thousands of electors and he could not do that.

“It 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,” Justice Saunders stated.

The Court of Appeal in a majority 2-1 decision had ruled that when the Constitution at Article 177 (2) dictated that it is the party with “more votes are cast” that wins the elections what the Constitution means is “more ‘valid’ votes are cast” with respect to the March 02 polls.

The two judges – Dawn Gregory-Barnes and Brassington Reynolds – saw the need to insert the word “valid” because in their view the legal order that allowed for a national vote recount undertook to resolve questions regarding the credibility of the elections.

While questions regarding an election should be challenged by way of an elections petition in the High Court after a winner is declared and sworn in, the applicant, Eslyn David sought to get the Court of Appeal to challenge the elections by invoking Article 177(4) of the Constitution. That section gives the Court of Appeal “exclusive jurisdiction” to hear and determine any question as to the validity of an election of a President.

With the Court of Appeal having ruled, attorneys for David argued that that “exclusive jurisdiction” should have been preserved, meaning that the decision of the Court of Appeal was not appealable and should not have reached the CCJ and so the CCJ had no jurisdiction to entertain the case.

But the dissenting Court of Appeal judge Rishi Persaud, had ruled that the “proper and lawful” interpretation of the section of the Constitution under question led him to the “inescapable conclusion” that the Court of Appeal did not have the jurisdiction to hear the case and that any “technical and convoluted interpretive excursions must be eschewed (or avoided).”

Justice Persaud said he had perused the various pieces of legislation that govern the election process and the powers of GECOM and he could not find any provision which even suggests that GECOM is empowered to embark on what would be an evidential based credibility exercise. The only way such an exercise could be undertaken is through an elections petition, Justice Persaud had ruled.

Attorneys for the applicant had argued that the wording and operation of Article 177(4) operate as a complete bar to any appeal to the CCJ – once the Court of Appeal has exercised its jurisdiction pursuant to Article 177(4), its decisions are final and cannot be subject to review, even if the Court of Appeal had breached its jurisdiction.

Judges of the CCJ did not agree. The judges of the CCJ who heard and determined the case were President of the CCJ Justice Adrian Saunders, Justice Rajnauth-Lee, Justice Jacob Wit, Justice Denys Barrow and Justice Peter Jamadar.

They ruled that Article 177 of the Constitution only deals with questions regarding the qualifications of a person who is elected President.

The ruling by the Court of Appeal set off a perverse interpretation by the caretaker Coalition APNU+AFC which claims that only the votes Lowenfield deems to be valid should be used to determine the basis of the results for the elections.

The fears of the opposition that Lowenfield would actually use the decision of the Court of Appeal to produce a fraudulent report was confirmed when he, Lowenfield, on June 23 wrote a letter to the Chairman of the Guyana Elections Commission (GECOM) to say that he acted under the guidance of the Court of Appeal decision and prepared a report of the results of the elections with the necessary allocation of seats.

Lowenfield’s report was scandalous and a betrayal of the instructions he had received from the Chair of the Elections Commission.

The CCJ was presented with the ten certificates of the national vote recount which were all signed off as valid by GECOM workers under Lowenfield’s own supervision. The ten certificates, which clearly have the words valid on them, were displayed on live TV for the public to see. So just about anyone could add up the figures from the ten certificates and determine who the winner of the elections was.

The winner was the PPP and Irfaan Ali should be declared and sworn in as President. But Lowenfield’s report aimed to do otherwise and to have David Granger sworn in instead.

The recount showed that there were 460, 352 valid votes with the PPP securing a majority of 233, 336 votes. That would make for 33 seats in the National Assembly.

The Coalition APNU+AFC received 217, 920 votes and gained 31 seats.

Together the parties ANUG, LJP and TCM received 5, 214 votes and would get the other seat to complete the 65-seat National Assembly.

But Lowenfield’s June 23 report, which he said was based on the Court of Appeal ruling, reduced the total votes cast to 344, 508, slashing 115, 844 votes with no explanation.

From the new figure he conjured up, Lowenfield assigned the Coalition 171, 825 votes and 33 seats in the National Assembly. He gave the PPP 166, 343 and 31 seats in the National Assembly. For ANUG, LJP and TCM he slashed their votes also, giving them 5, 214 votes but maintaining their one seat in the legislature.

A high-level team from the Caribbean Community (CARICOM) which served as the scrutineers for the national vote recount, noted the claims of APNU+AFC but said they found no proof of electoral fraud.

The team said that APNU+AFC peddled those allegations so much so as to make them seem factual but they had “absolutely no evidence to substantiate the allegations.”

“This (the allegations) invariably and unfortunately led to a false narrative in the public domain that the elections were not credible and that massive electoral fraud occurred on poll day,” the CARICOM Team stated.

The leader of the Coalition, President David Granger, has so far refused to concede defeat, though his Prime Ministerial Candidate Khemraj Ramjattan did so and gave a farewell speech to his staff at the Ministry of Public Security.

Attorneys for Irfaan Ali and the Opposition Leader argued that what the Court of Appeal did was to encroach upon the exclusive jurisdiction of the High Court to determine the validity of an election.

“This is by far the most important issue in this case since the Court of Appeal’s assumption of jurisdiction has far reaching and lasting effects on the landscape of elections and election law in Guyana and must be set right by this Honourable Court,” Douglas Mendes, attorney for Ali and Jagdeo had submitted to the CCJ.

He pointed out that the qualifications of the President are set out in Article 90 of the Constitution and the President is to be elected by the people in the manner prescribed by Article 177.

Article 177 provides that each list of candidates must designate a President and deems a vote for a list to be a vote for the Presidential candidate named in the list.

Where, as in this case, there are two or more Presidential candidates, the winner is deemed to be that person who is designated as President on the list in favour of which “more votes are cast … than in favour of any other list.”

The deemed winner is to be “declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Elections Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.”

On the face of it, therefore, the election of the President under Article 177 can only be determined after the results of the election to the National Assembly are determined.

It is only when the number of votes cast for each list is determined, that it will be possible to identify the wining Presidential candidate, Mendes had argued.

The advice of the CEO, the meeting of GECOM and the declaration by the Chairman are the formalities which give effect to the votes cast for the list as determined by GECOM.

Mendes argued that no President has yet been elected and so the “exclusive” jurisdiction of the Court of Appeal does not apply.

He further noted that the applicant Eslyn David complained that GECOM decided that it did not have the authority to determine the credibility of the election, even though, as she claimed, the Order issued by GECOM established credibility as a criteria.

All of her complaints, Mendes noted, fall within the category of matters which fit an elections petition in the High Court; none of the issues raised, he said require an interpretation of the Constitution for resolution and therefore do not fall within the exclusive jurisdiction of the Court of Appeal under Article 177(4).