Court of Appeal judges: Justices Rishi Persaud, Dawn Gregory and High Court Judge Brassington Reynolds
April 5 2020
The Court of Appeal on Sunday dismissed the appeal, except in one part, against the Full Court decision to discharge the injunctions blocking a national recount of votes cast on March 02, preventing a High Court trial.
The exception was that the Court of Appeal felt the High Court should have been allowed to examine the decision of GECOM to let CARICOM supervise a national recount but the court said that the matter was not being sent back to the High Court.
The Court will issue its orders in this regard by 1: 30 p.m. Monday afternoon.
The delivery of the orders was delayed because Senior Counsel Roysdale Forde wanted to write the court on the only ground under which it granted the appeal – that the High Court should have been allowed to say whether GECOM was breaching its constitutional supervisory powers by handing over supervision of a recount to CARICOM.
Forde insisted on writing the court despite repeated statements by one of the three judges – Justice Dawn Gregory-Barnes – that the matter will not go back to the High Court.
All the lawyers understood the judgment of the court, except Forde but the court is unlikely to change its mind.
Regardless of what happens, the Chair of GECOM, Justice Claudette Singh, has already stated that a recount would go ahead with or without CARICOM.
In her ruling, Justice Gregory-Barnes noted that the GECOM chair, in her affidavit, pointed to her powers under the Constitution that the elections should be independently supervised by GECOM, and therefore the responsibility is on GECOM to supervise the elections to ensure fairness and impartiality.
That the supervision of the recount would be undertaken by an independent team was supported by Mark France of A New and United Guyana (ANUG) in his affidavit in defence.
France’s application, the Judge stated, confirmed a Media Release which pointed to CARICOM supervising the recount, since it used words such as “oversight”.
Such facts, Justice Gregory-Barnes asserted must have triggered the supervisory jurisdiction of the High Court to see if the provisions of the Constitution regarding the functions were being breached.
But she stressed that while that is the case, the matter was never heard by Justice Franklyn Holder, and so it ought not to go back to him.
Justice Rishi Persaud was the only judge that upheld the “irresistible conclusions” of the Full Court that GECOM can decide the methodology by which it addresses deficiencies.
But Justice Brassington Reynolds felt that by moving to have CARICOM supervise the recount, GECOM was outsourcing its constitutional responsibilities – the same position of Justice Gregory-Barnes.
Justice Persaud in dissenting to that view stated that GECOM is mandated to ensure a fair and impartial election and is required to put in place mechanisms to achieve that purpose.
He quoted the Full Court decision: “This Court is of the view that that the filing of judicial proceedings undermines the legislative process.
“…On this point, it is clear that the filing of these judicial review proceedings has had the contrary effect to facilitating the efficient completion of the 2nd March 2002 National and Regional Elections. This is a clear demonstration of one type of mischief which the legislature intended to address by providing in plain and simple language, that these challenges should be addressed by elections petition.
“The entire scheme of the elections matrix points significantly to the fact that the election process must swiftly and efficiently take its course so as to enable the elections results to be declared.”
In her decision, Justice Gregory-Barnes, noted the argument of Ulita Moore, the applicant, through her attorney Keith Scotland, that the votes cast have been duly counted and since calls for a recount were rejected, there may be no further count or recount and the Presidential candidate of the winning list should be declared and that GECOM should make a public declaration of results for membership of the National Assembly.
But Justice Gregory-Barnes noted that Moore’s arguments cannot be upheld since GECOM has wide-ranging powers to decide on how it conducts the elections.
The Chair of GECOM last Friday declared that the recount will go ahead and the Commission is trying to decide on how the recount would be conducted.
