A bold, compelling and erudite analysis
The decision of Chief Justice Roxane GeorgeWiltshire (CJ) is a bold, compelling and erudite analysis of the law relating to the interpretation of what the public now knows as Section 22 and Order 60. These refer to Section 22 of the Election Laws (Amendment) Act and Order 60 of 2020 made by the Elections Commission under the power to do so given by Section 22, to facilitate the recount of the votes cast in the March 2, 2020, elections. The CJ found that neither Section 22 nor Order 60 violates the Constitution and both are valid, lawful and intra vires, that is, within the powers granted by Article 162 of the Constitution and Section 22. The CJ also found that there is no evidence of unlawful acts to sustain the allegation that such alleged acts affected the results of the elections. This decision is now binding on all parties. It is not ‘pending’ or ‘temporary’ or ‘subject to appeal.’ It is a ‘final’ decision.
Section 22 gives power to the Elections Commission to make an order that may modify or remove any difficulty that arises in implementing, giving effect to, or interpreting, certain legislation relating to elections. Order 60 of 2020 was made by the Elections Commission under the powers given to it by Section 22. Thus Order 60 provided for a recount of the votes cast at the March 2, 2020, elections and sets out rules by which the recount is to be made.
The Petitioners challenged the constitutionality of Section 22 and its progeny, Order 60, arguing that they both violated the Constitution. Those Respondents who filed submissions, including Bharrat Jagdeo and the Attorney General, contended that GECOM was authorized to act to deal with the difficulties encountered and that it did so lawfully pursuant to Article 162 of the Constitution, Section 22 and Order 30. Apart from giving GECOM power to exercise “general direction and supervision” over the conduct of elections, Article 162 empowers GECOM to “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 any Act of Parliament” by the responsible persons. Referring to this provision, the CJ observed that “GECOM has to ensure that its officers and staff and others who exercise powers or perform functions regarding the administrative conduct of elections carry out its mandate.”
Consequently, the CJ ruled that “Section 22 is an implementing provision to operationalize Article 162, so that GECOM could exercise its functions in the management of the election process. It therefore falls within the four corners of this provision [Article 162(1)(b)] of the Constitution.” In responding to the argument that only parliament can legislate, the CJ ruled that Parliament did not abdicate its law-making responsibility to GECOM when it enacted Section 22. The CJ pointed out that other legislation gave power to Ministers and entities to make orders. After a detailed and extensive exposition of the relevant legal principles, the Chief Justice ruled that Section 22 is not ultra vires (outside the power) of the Constitution.
Even though Section 22 provides for the issuing of orders which may have the effect of amending legislation, the CJ said that Order 60 did not amend any legislation, but merely facilitated the recount. If a person exercising functions goes rogue, Her Honour concluded that GECOM does not have to wait until an election petition is filed. In this connection, the CJ expressed the view that given the difficulties that attended the completion of the elections, which she analysed in detail, it did not appear that it would have been prudent for GECOM to declare the results. GECOM, as part of its core function, provided for by the Constitution, had an obligation to complete the election process and therefore had a concomitant obligation, duty and responsibility to address such difficulties to achieve the objective. For these and other reasons the Chief Justice ruled that Order 60 did not usurp the jurisdiction of the High Court by passing legislation. Like Section 22, it merely facilitated the process for the completion of the election.
The CJ noted that submissions made on behalf of the Petitioners suggested they are relying, not only on the first limb of Article 163(1), that is, the unlawful conduct of the elections, but also on the second limb of the Article, namely, that unlawful acts and omissions affected or may have affected the results of the election. The CJ ruled that “…there is no evidence to support the second limb of Article 163(1) that there were unlawful acts or omissions such as to affect the result.” The unlawful acts and omissions had to be proved and since no such evidence was led, this ground also failed.
A blog or newspaper article for popular consumption cannot do justice to the depth and extent of analysis and learning that went into the 32-page oral decision. But, when published, it will stand at the pinnacle of the Caribbean’s and Guyana’s already considerable jurisprudence on election law. It will become a permanent landmark to guide those everywhere who seek to uphold the integrity of elections, and to the legacy of a Chief Justice with many years of productive work ahead.