Chief Justice to rule next week on challenge to house-to-house order
Acting Chief Justice Roxane George-Wiltshire will rule next week on the challenge brought by Lenox Shuman, Leader of the Liberty and Justice Party, to the validity of the order signed by former Guyana Elections Commission (GECOM) Chairman James Patterson for the conduct of the national house-to-house registration exercise.
The Chief Justice made the announcement following the conclusion of arguments before her yesterday afternoon. The ruling is to be handed down next Friday.
During the three-hour hearing, Shuman’s attorney, Sanjeev Datadin, rejected arguments advanced by counsel for the Commission that the “de facto doctrine” (not necessarily by legal right) essentially saved all decisions made by Patterson although the Caribbean Court of Justice (CCJ) would eventually declare his appointment void.
On June 18th, the CCJ declared the process used by President David Granger to unilaterally appoint Patterson in October of 2017 as Chairman of the GECOM to have been flawed and unconstitutional.
As a result, Datadin’s position is that the declaration of the date by Patterson on June 11th for the exercise was made in “bad faith,” and was “unreasonable,” since the challenge to the validity of his appointment was still being heard by the Trinidad-based CCJ— Guyana’s final appellate court.
Patterson, who resigned following the ruling of the court, had ordered that the registration exercise commence on July 20th.
Datadin’s argument is that since Patterson’s appointment had been invalidated, all the actions he would have taken and decisions he would have made while he sat as Chairman are likewise void and could not be preserved by the de facto doctrine.
However, attorneys Roysdale Forde and Solicitor General Nigel Hawke, who represent GECOM and the Attorney General, respectively, argued that the doctrine does in fact apply.
They argued that the de facto doctrine advances “that the acts of officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third parties and not of their own benefit, are valid and binding as if they were officers de jure (by right).”
Forde submitted that the de facto doctrine can be invoked where a de facto appointment has been determined and is defective and unsustainable in law, while adding that it is applied in circumstances where the defect in the appointment of the officer arises from a breach of the constitution.
Datadin’s position prompted the Chief Justice to enquire whether the Local Government Elections (LGE), held in November of last year, would therefore have to be declared void since it was conducted under Patterson’s chairmanship.
Datadin said that there had been no dispute brought before the court challenging the LGE conducted under the hand of Patterson.
The judge then made the observation that there were instances where counsel seemed to be “cherry picking” what should or should not be declared void.
She noted, too, from the CCJ hearing that lawyers for Zulfikar Mustapha, by whom Patterson’s appointment was challenged, had also seemed to be selective in their position that his appointment be invalidated.
On this point the judge reminded that Mustapha’s attorneys had asked the CCJ that if it declared Patterson’s appointment void, they wanted him to remain for the conduct of general elections, which became due within three months of the December 21st, 2018 no-confidence motion passed against the Granger-led coalition government.
In its June 18th ruling, the CCJ declared the motion validly passed, while stating that Article 106 (6) and (7) of the Constitution immediately became triggered.
Article 106 (6) states, “the Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.
Further, 106 (7) adds, “Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”
While government has said that the house-tohouse exercise is an important prerequisite to the holding of credible elections, leader of the opposition PPP/C Bharrat Jagdeo has said that his party will not be returning to the National Assembly to grant any time extension.
The opposition camp is contending that in accordance with the CCJ ruling,
elections ought to be held no later than September 18th—three months from the June 18th date of the judgment of the court.
The court in its ruling did not set a date by which elections are to be held, stating that it would not get involved in the functions of the various stakeholders, but did say that effect ought to be given to Article 106 (6) and (7).
This is the position to which government holds in dismissing calls by the opposition that elections are to be held by September 18th.
Meanwhile, GECOM has projected that its ongoing house-to-house registration exercise is likely to end on October 20th.
During his submissions yesterday, Datadin sought to argue as he had previously done that it was unreasonable, unfair and irrational for Patterson to have even issued an order for the commencement of the house-to-house registration exercise, especially since his appointment was disputed and pending before the court.
Hawke, however, advanced that the record of evidence would show that it had always been in the contemplation of the GECOM, following the no-confidence motion, that the registration exercise would be conducted.
For his part, Forde said that there was no way at the time Patterson issued the order that he would have known on what date the CCJ would have ruled and that the ruling would have been against him (Patterson).
Counsel held to his contention that Patterson at the time would have made the order in accordance with law, which provided for him to have made it in the very way he did. Forde is of the view that the order was made at a time Patterson was functioning legally, as was the entire Commission.
In his fixed date application, Shuman argues that since the appointment of Patterson as the GECOM Chairman was found to be void by the CCJ, it effectively rendered the order made under his hands void also.
As a result, he is seeking an order of certiorari to quash the registration order, while contending that the setting of the date was, among other things, unlawful and made in bad faith.