Derek Achong

Guyanese cit­i­zens are ex­pect­ed to learn the fate of a last ditched ap­peal to re­solve its out­stand­ing pres­i­den­tial elec­tion re­sult, next Wednes­day. 

Caribbean Court of Jus­tice (CCJ) Pres­i­dent Adri­an Saun­ders and six of his col­leagues re­served their de­ci­sion on the ap­peal af­ter com­plet­ing hear­ing lengthy sub­mis­sions via video con­fer­enc­ing, yes­ter­day af­ter­noon. 

In ad­journ­ing the court’s judge­ment, Saun­ders not­ed that he and his col­leagues were aware of the need to ex­pe­di­tious­ly de­ter­mine the case, which was brought by that coun­try’s Op­po­si­tion Peo­ple’s Pro­gres­sive Par­ty (PPP), last week. 

The ap­peal cen­tres around the ju­ris­dic­tion of Guyana’s Court of Ap­peal and the CCJ, as the coun­try’s high­est ap­pel­late court, to de­ter­mine le­gal is­sues sur­round­ing elec­tions for mem­bers of the coun­try’s Na­tion­al As­sem­bly and the Of­fice of the Pres­i­dent, who are all elect­ed via pro­por­tion­al rep­re­sen­ta­tion. 

Pre­sent­ing sub­mis­sions on be­half of PPP pres­i­den­tial can­di­date Ir­faan Ali and gen­er­al sec­re­tary Bhar­rat Jagdeo, Se­nior Coun­sel Dou­glas Mendes claimed that the Court of Ap­peal did not have the ju­ris­dic­tion to hear and de­ter­mine the case, in which it even­tu­al­ly ruled that “more votes cast” un­der Guyana’s Con­sti­tu­tion should be in­ter­pret­ed to mean “more valid votes are cast”. 

Fol­low­ing that court’s de­ci­sion, de­liv­ered last Mon­day, Guyana’s Chief Elec­tion Of­fi­cer Kei­th Lowen­field then pro­duced a re­port on the “valid and cred­i­ble votes” in the elec­tion, ef­fec­tive­ly strik­ing out 25 per cent of the votes cast and show­ing a vic­to­ry for the rul­ing AP­NU/AFC coali­tion. 

Mendes claimed that Lowen­field’s move was in di­rect breach of a stay grant­ed by the Ap­peal Court and a sub­se­quent or­der grant­ed by the CCJ.

Mendes not­ed that un­der Guyana’s Con­sti­tu­tion, the Ap­peal Court has the ex­clu­sive ju­ris­dic­tion to de­ter­mine the va­lid­i­ty of the Pres­i­dent based on his/her qual­i­fi­ca­tions. 

How­ev­er, he claimed that the High Court had the prop­er ju­ris­dic­tion to de­ter­mine elec­tions pe­ti­tions in­clud­ing over the va­lid­i­ty of the votes. Pe­ti­tions filed through the High Court can be then ap­pealed to the Court of Ap­peal and then the CCJ. 

Mendes not­ed that both sys­tems could be ac­cessed af­ter elec­tions re­sults are de­clared and not be­fore as was re­cent­ly done by Lowen­field and Guyana’s Elec­tion Com­mis­sion (GECOM). 

“The court must re­solve this con­flict of ju­ris­dic­tion,” Mendes said. 

Pre­sent­ing sub­mis­sions on be­half of Es­lyn David, the Guyanese cit­i­zen who brought the con­sti­tu­tion­al law­suit, Se­nior Coun­sel John Je­re­mie main­tained that the CCJ did not have ju­ris­dic­tion to hear the ap­peal based on the Court of Ap­peal’s ex­clu­sive ju­ris­dic­tion. He called for the ap­peal to be dis­missed.

Je­re­mie al­so point­ed to a case, which he said showed that law­suits such as the one pur­sued by his client could be brought be­fore an elec­tion re­sult is of­fi­cial­ly an­nounced. 

The Unit­ed Re­pub­li­can Par­ty, who was list­ed as an in­ter­ven­er in the case and sup­port­ed the PPP’s po­si­tion, was rep­re­sent­ed by Fyard Ho­sein, SC, De­vesh Ma­haraj, Sasha Bridge­mo­hans­ingh, Aadam Ho­sein and Kan­dace Bharath-Na­hous. 

The elec­tion cri­sis in Guyana arose in De­cem­ber 2018, when a no-con­fi­dence mo­tion in the coali­tion gov­ern­ment led by Pres­i­dent David Granger,  was passed by the 65 mem­ber as­sem­bly by a slim 33 to 32 ma­jor­i­ty. 

Fol­low­ing the mo­tion, which ef­fec­tive­ly forced the Cab­i­net to re­sign, Guyana’s At­tor­ney Gen­er­al Basil Williams filed a High Court ac­tion against Jagdeo and Speak­er of the Na­tion­al As­sem­bly, Dr Bar­ton Scot­land, to de­ter­mine if the mo­tion was law­ful­ly passed.

Act­ing Chief Jus­tice Rox­anne George-Wilt­shire weighed in on the is­sue first and ruled that the mo­tion was cor­rect passed al­though Per­saud was il­le­gal­ly sit­ting as an MP due to his dual cit­i­zen­ship. 

Guyana’s Court of Ap­peal over­turned the judge­ment as Chan­cel­lor of the Ju­di­cia­ry Yo­nette Cum­mings-Ed­wards and Ap­pel­late Judge Dawn Gre­go­ry ruled that an ab­solute ma­jor­i­ty of 34 votes was re­quired to pass the no-con­fi­dence mo­tion. 

In Ju­ly, last year, the CCJ ruled against the in­cum­bent gov­ern­ment es­sen­tial­ly up­hold­ing George-Wilt­shire’s judge­ment. 

While the CCJ ad­vised that un­der Guyana’s Con­sti­tu­tion elec­tions were due with­in three months of the no-con­fi­dence vote or its rul­ing, the elec­tion was de­layed over is­sues with GECOM fi­nal­is­ing the list of vot­ers.