Mohamed Irfaan Ali v Eslyn David
| Jurisdiction | Caribbean States |
| Judgment Date | 08 July 2020 |
| Date | 08 July 2020 |
| Docket Number | CCJ Application No GYCV2020/002 |
| Court | Caribbean Court of Justice |
[2020] CCJ 10 (AJ) GY S
IN THE CARIBBEAN COURT OF JUSTICE
APPELLATE JURISDICTION
CCJ Application No GYCV2020/002
GY Civil Appeal No 41 of 2020
and
Jurisdiction of the CCJ — Sections 4(3) and 6(c) of the Caribbean Court of Justice Act-Articles 163 and 177 of the Guyana Constitution — elections process in Guyana — jurisdiction of Court of Appeal under Art 177(4) — validity of election of a President — valid votes — exclusive jurisdictions of the High Court and Court of Appeal of Guyana
It is a matter of considerable concern to the people of Guyana that, although General and Regional Elections (‘the Elections’) were held as long ago as 2 March 2020, to date, the results of the Elections have not been declared and the President and members of the National Assembly have not been appointed. The Constitution, which expressly declares that it is the supreme law, professes the Co-operative Republic of Guyana to be a democratic sovereign State. Elections that are free and fair are the lifeblood of any true democracy. All arms of state, whether legislative, judicial, or executive, are subject to the normative, enabling, and limiting jurisdictions, powers, and responsibilities that are constitutionally legitimate.
This Court is acutely conscious of the great importance of these proceedings and our own ultimate responsibility to safeguard and uphold the provisions of the Constitution and the high constitutional values contained in the Preamble to that instrument. The central questions that have been placed before us are: whether a) this Court has jurisdiction to hear and determine this matter, and if so, whether b) the Court of Appeal rightly assumed and/or acted within the jurisdiction conferred by Article 177 (4) of the Constitution. We determine these issues based on the rule of law, the full extent of the jurisdiction vested by the Parliament of Guyana in all the courts serving that country and our appreciation of the applicable constitutional, legislative, and legal provisions.
After the elections were held in Guyana 2 March 2020, the Guyana Elections Commission (GECOM) decided to recount the votes cast in all ten administrative regions. To facilitate the recount, GECOM issued Order No. 60 of 2020 which was Gazetted and dated 4 May 2020 and later amended by Order No. 69 of 2020 dated 29 May 2020 (Order 60).
Order 60 was aimed at a transparent recount process. To this end it embraced a variety of measures. For example, at each “workstation” where recounting was to be carried out, there was to be installed a picture of the ballot box depicting the state in which it was delivered to the workstation and an audio feed of the recount process. An audio-visual facility was established in the Tabulation Center, broadcasting live the entire tabulation process. Order 60 carefully set out how the process should unfold. Paragraph 12 of the Order required the Chief Elections Officer (CEO) to tabulate the matrices containing the Statements of recount of the ten electoral districts and submit to the Commission a report together with a summary of observation reports for each District.
During the recount process, Mr Joseph Harmon, an Election Agent of the APNU/AFC alliance wrote several letters to GECOM alleging anomalies, irregularities, voter impersonation and fraud. On 13th June the CEO submitted his report. He indicated the votes that were cast and counted for each List of Candidates, but he also drew attention to what he considered to be widespread irregularities. He took it upon himself to indicate that votes contained in any ballot box in which he found an irregularity should be subtracted from the total votes cast and previously counted. It was his assessment that it could not be ascertained that the results for the Districts met the standard of fair and credible Elections.
On receiving this report, the GECOM Chairperson conferred with the GECOM Commissioners and announced publicly that some of the allegations set out in the CEO's report were serious, but the Commission did not have the machinery to adjudicate them. The Commission, she noted, lacked the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations. The Chairperson pointed out that the Constitution had vested in the High Court an exclusive jurisdiction to determine the legality of an election and the Commission could not arrogate onto itself the power to annul elections. By letter of 16 June, the Chairperson accordingly directed the CEO to prepare and submit his report by 1:00PM on 18th June, 2020 using the results of the recount. Before the CEO could comply with this request Ms Elsyn David launched these proceedings by an Application to the Court of Appeal.
Ms. David's Application sought to invoke the Court of Appeal's jurisdiction under Article 177(4) of the Constitution. Decisions of the Court of Appeal under that Article are final and cannot be appealed to the CC J. The Application challenged the credibility of the count by GECOM under Order 60. Ms David requested an interpretation of the phrase “more votes are cast” in Article 177(2)(b) of the Constitution and she asked the court to restrain the CEO from complying with the GECOM Chair's Direction without GECOM first determining the credibility of the Elections under Order No. 60 and s 96 of the Representation of the People Act. Her Application was premised on the notion that Order 60 created a new and completely different legal regime, that GECOM had abdicated its responsibility to determine the election's credibility and that the Chairperson's direction to the CEO required that official to commit an illegality.
The Court of Appeal heard Ms David's Application on 20 June 2020 and, commendably, on 22 June 2002 delivered its judgment (‘the Decision’). A critical issue was whether the Court of Appeal possessed the jurisdiction to hear Ms David's Application, that is whether the Application properly fell under Article 177(4). By a majority, the court held that it did. Justice Reynolds found that a new election regime had been created by Order 60 and that the Constitution established separate elections for the National Assembly and the President. Justice Gregory found that Order 60 had sufficient force to impact the words in Article 177(2)(b) of the Constitution. Both judges agreed that the words in Article 177(2)(b) of the Constitution, “if more votes are cast in favour…” must be interpreted to mean ‘if more valid votes are cast in favour’.
In a dissenting opinion, Justice Persaud held that the Court of Appeal did not have jurisdiction to hear the Application as Parliament had not made any provisions giving effect to Article 177(4) and no genuine question was raised concerning the validity of the election of the President. He also held that the Application was premature as no President had as yet been declared to have been elected. It was his view that the High Court had the exclusive jurisdiction to determine the validity of an election pursuant to Article 163 of the Constitution.
Although the Court of Appeal granted a stay of its judgment for three days, the CEO, on the day following the delivery of the judgment, submitted another report to GECOM. In this report, which he based on the Court of Appeal's decision, the CEO invalidated votes he determined were invalid. This amounted to the exclusion of over 100,000 ballots previously counted and certified as valid during the recount process.
On 23 June 2020, Messrs Ali and Jagdeo applied to this Court for special leave to appeal the Court of Appeal's decision. Given the urgency of the case, it was decided that the hearing of this Special Leave Application and, in the event special leave were granted, the merits of the appeal, should be heard together. We gave permission for all parties, including all political parties who contested the Elections that were not already part of the proceedings, to make written and oral submissions to us on the following broad issues:
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(i) Whether the Court of Appeal had jurisdiction to entertain Ms David's Application;
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(ii) If the Court of Appeal lacked jurisdiction, what is the consequence in relation to this proposed appeal;
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(iii) If the Court of Appeal rightly assumed jurisdiction, what is the consequence in relation to this proposed appeal; and
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(iv) If the Court of Appeal rightly assumed jurisdiction but they exceeded their jurisdiction, what is the consequence in relation to this proposed appeal.
Among the parties' submissions, two clear approaches were discernible: those supporting the Court of Appeal's assumption of jurisdiction under Article 177(4), thus making its decision final and unappealable to this Court and those submitting that Article 177(4) was not triggered by Ms David's Application and therefore this Court was entitled to set aside the Court of Appeal's decision as not having been made under Article 177(4)..
This court first recognised that Article 123(4) of the Constitution gives Parliament the power to make the CCJ the final court of appeal for Guyana. Under this authority, the Caribbean Court of Justice Act, Chapter 3:07 (“the CCJ Act”) was enacted, rendering this court the apex court for Guyana. The CCJ Act, which implemented the Agreement Establishing the CCJ and gave it force in Guyana's...
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