Stabroek News

Chief Justice ruling on the applicatio­n to block the declaratio­n of the election results based on the recount exercise

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In democracy, leaders step aside when they are voted out of office. That speaks to the importance and strength of institutio­ns, not individual­s; and to the power of the people, not those who would usurp their power.

Bradley Freden, U.S. Representa­tive to the OAS

A litmus test of any democracy is the peaceful and orderly transfer of power if that is so ordained by the expressed will of the people. Sadly, Guyana has failed that test… But the pernicious actions of a few have wreaked considerab­le damage to Guyana’s image and reputation. Even if this debacle is soon and satisfacto­rily resolved, it will perhaps take a generation and significan­t institutio­nal reform for that damage to be fully repaired. The people of Guyana did not deserve this.

where Justice Bernard stated that the court can exercise a supervisor­y jurisdicti­on in election cases outside the challenge to the validity of the elections via an election petition. She also cited the ruling of the Court of Appeal in that the Court can exercise supervisor­y jurisdicti­on where GECOM has acted or is about to act outside of its powers.

Additional­ly, the Chief Justice referred to her ruling in in which she held that the Court had jurisdicti­on to hear an applicatio­n regarding whether a person exercising authority has complied with his/her statutory duties. She also relied on

The Chair of GECOM had issued Order No. 60 of 2020 for the recount exercise in accordance with Section 22 of the Election Laws (Amendment) Act. The applicant’s main contention was that this section conflicts with articles 160 and 170 of the Constituti­on that provide for Parliament to be the law-making body and to make laws relating to election matters.

The respondent­s’ lawyers, however, argued that Section 22 confers limited authority on GECOM to issue an Order to remove any difficulty arising in the applicatio­n of the election-related laws; and it is consistent with Article 162. That article empowers the Commission to take appropriat­e action to ensure ‘impartiali­ty, fairness and compliance with [the] 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’. The respondent­s’ lawyers contended that Order 60 does not amend any legislatio­n.

Additional­ly, the respondent­s’ lawyers res judicata raised the issue which was pronounced on by the Court of Appeal in Moore on the court’s ability to enquire into the constituti­onality of Section 22. The applicant, however, claimed that the obiter dicta court’s pronouncem­ent was (remarks or observatio­ns made by a judge, though included in the opinion, not being ratio decidendi part of the decision) and not (the court’s reasoning for the decision). The Chief Justice, however, disagreed and obiter dicta, noted that even if it were the Ying v Song [2009] words of Ward J in NSWSC 1344 are relevant:

It has long been the case that the obiter dicta weight accorded to will vary depending on the circumstan­ces in which those dicta fell and that considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position in the judicial hierarchy, must be afforded the greatest weight and should be departed from only with the greatest of caution. (Paragraph 35) The Chief Justice ruled that the principles res judicata of apply to the applicatio­n of Ms. Jones.

Validity of Order No. 60 of 2020 in relation to the recount exercise

The applicant’s main contention was that in view of what she claimed to be the unconstitu­tionality of Section 22 as well as the CCJ ruling in Ali at paragraphs 37, 45 and 52, Order 60 is invalid. The respondent­s’ lawyers, however, felt otherwise and considered that the ruling must be read as a whole. They also argued that the Court of Appeal permitted the recount by its decision in Moore and David. They res judicata. felt that the matter is The Chief Justice drew attention to various paragraphs in the CCJ ruling, including the last sentence in paragraph 52 which states that ‘[w]ith respect to the notion that Order 60 could either impact interpreta­tion of the Constituti­on or create new election regime at variance with the plain words of the Constituti­on is constituti­onally unacceptab­le’. She concluded that:

An holistic review of the CCJ judgment in Ali supports the contention of the Chairperso­n and the added respondent­s that this issue is indeed res judicata.

Thus, the interpreta­tion of the CCJ decision by the applicant, the CEO and the AG is hopelessly flawed. The CCJ judgment lends to the ineluctabl­e conclusion ex that the recount votes are facie valid. Hence the view expressed that any irregulari­ties would have to be addressed via an election petition. (Paragraph 46)

Thus, both courts, by which I am bound, have pronounced on this issue. This court, therefore, cannot rule that O 60 is invalidate­d. (Paragraph 60) res judicata.

The issue is therefore

(Paragraph 61)

Status of the declaratio­ns of the ten Returning Officers

The applicant contended that the 13 March declaratio­ns by the ten Returning Officers were fully compliant with the Law and the CCJ ruling in Ali; and are still valid and, although held in abeyance, were never invalidate­d, or set aside by any Court of competent jurisdicti­on. Order 60 therefore could not permit new declaratio­ns as this would be unconstitu­tional in the context of Article 163. The applicant further argued that Order 60 could not be made retrospect­ive so as to nullify the ten declaratio­ns.

The Chief Justice’s conclusion was that the ten declaratio­ns were overtaken by events whereby GECOM considered there were difficulti­es that had to be addressed subsequent to the declaratio­ns in order to produce a credible vote count. It did so through the issuance of Order 60 which could not be considered to have retrospect­ive effect. She also referred to paragraph 109 in Moore in which it was stated that it is within the functions of GECOM to resolve any controvers­y as part of its responsibi­lities to deliver the results of the elections.

The Chief Justice also referred to paragraph 38 of the CCJ ruling in Ali in which it was stated that the intention of Order 60 was ‘to provide an open, transparen­t and accountabl­e recount of all the votes cast in those elections’. She also cited Section 18 of the Election Laws (Amendment) Act 2000 which provides for the Chief Election Officer (CEO) and the Commission­er of Registrati­on to be subject to the direction and control of the Commission, notwithsta­nding anything in any written law. (Emphasis added.) In this regard, she stated that while the CEO is expected to act independen­tly, he is not a ‘lone ranger’ and does not have a constituti­onal mandate under Article 177. Rather, it is the Chair of GECOM and the Commission that have such a mandate, and in producing a report based of Section 84 of the Representa­tion of People Act, one would expect the CEO to be guided by the Commission. This the Chairperso­n sought to do via her letters to the CEO.

The Chief Justice also alluded to the CCJ ruling that unless overturned by a Court in an election petition, the only data that could be used to declare the results of the elections would have to be the recount results or data. She concluded that ‘the ten declaratio­ns cannot be resurrecte­d at this point in time. In this regard, there can no longer be an impasse between the Chairperso­n and the CEO as to the effect of art 177(2)(b) and s 96’. (Paragraph 77)

Res judicata

The Chief Justice stated that some of the 28 claims of relief that the applicant was seeking have already been dealt with in Moore and Ali, and cannot therefore be re-litigated. Some were exactly the same while others were couched in different res words. She explained the principles of judicata, including the comments of the Garraway v Williams [2011] CCJ CCJ in 12 (AJ) that three essential conditions must be satisfied: there must be an earlier decision covering the issue; there must be a final decision on the merits of that issue; and the earlier suit must involve the same parties or parties in privy with the original parties.

The Chief Justice concluded as follows: In my view, and so hold, when there is a public interest litigation such as this litigation, barring a new issue arising, or one that can be distinguis­hed, or a claim that the judgment was improperly obtained e.g. through misreprese­ntation of facts or law, or the perpetrati­on of fraud on the court, an applicant is bound by any decision on an issue that has been raised and adjudicate­d on previously. There must be finality to judicial decisions. Myriad of persons cannot be permitted to engage the court with multiple applicatio­ns regarding the same issue which has been decided, and shield behind the claim that they were not party to the previous proceeding­s. To so permit would be a waste of precious judicial time and resources. In short order – this cannot be allowed. (Paragraph 83) The reliefs sought are all based on issues that have already been litigated previously and determined by Courts that take precedence over res this High Court. Apart from judicata, under the common law system, applying the principle of stare decisis, I am bound to follow the decisions of the CA and ultimately the apex court, the CCJ. (Paragraph 85)

The applicatio­n is accordingl­y dismissed. (Paragraph 86)

Note: is the doctrine under which courts adhere to precedent on questions of law in order to insure certainty, consistenc­y, and stability in the administra­tion of justice with departure from precedent permitted for compelling reasons (as to prevent the perpetuati­on of injustice. (Merriam-Webster)

 ??  ?? Hamilton
Hamilton

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