Chief Justice Roxane George-Wiltshire
October 23 , 2020
On November 24th acting Chief Justice Roxane George-Wiltshire SC will commence hearing arguments on preliminary issues raised in the two election petitions filed by the main Opposition and she asserted that the petitions should be heard together though a final decision has not yet been taken.
The announcements were made yesterday during a case management conference (CMC) presid-ed over by the judge.
Senior Counsel Douglas Mendes who represents President Irfaan Ali and Vice President Bharrat Jagdeo—who are among the respondents in the petitions, has raised the preliminary issue that because his client Jagdeo was not served on time in accordance with prescribed Rules, the petitions may themselves amount to a nullity.
No date has yet been fixed for hearing the actual petitions.
Given Mendes’ contention, the Chief Justice said that this preliminary issue will be dealt with first, before any orders are made as to the fixing of dates in the substantive petitions before the court.
It has also not yet been determined by the Court whether the two petitions will be heard together.
On the issue of service, Mendes said that while service was to be effected on Jagdeo by registered post, he is yet to receive anything. Mendes said that while they have been attempting to garner copies of the documents which were filed in support of the petitions the petitioners did not comply with the Rules for service.
He said that what the Rules require is that an order be sought from the court which in turn must be satisfied that the actions thus far taken are sufficient for service purposes by which service would be deem to have been effected.
According to Mendes, it does not appear that the order so reflects.
Advancing these concerns as provisional and preliminary, even as he said that all of the documents are still to be perused; Mendes said that it does not appear that service has been effected at all on Jagdeo.
His position is that because the Rules were flouted, proper service was not effected.
Justice George-Wiltshire, however, said that she had a difficulty with Mendes’ conceptualization of the operation of the Rules, noting that she was of the view that an application was made ex parte for substituted service in both petitions and that based on evidence tendered to the court, the court would have reviewed the applications and made the order that there be substituted service.
Justice George-Wiltshire said that from her perspective the orders of court stand.
Mendes in response said that while the orders still stand, the application and order were not in accordance with the Rules even as he argued that in election petition matters the Rules are required to be strictly followed “certainly in relation to service.”
He said that the opportunities allowed to a petitioner who does not serve within time can result in the entire petition being a nullity. He said that the remedy to this is for the petitioner to make an application under the Rules.
He then stressed that the application and/or the order did not comply with the Rule and therefore service cannot be regarded as having been properly effected.
When arguments on this issue commence on November 24th, it will continue the very next day; then on November 30th and again on December 1st—at 9:30 on each day.
As regards the hearing of the petitions which Justice George-Wiltshire had said the court intends to hear together, both attorneys Roysdale Forde SC and Mayo Robertson who represent the petitioners in the first and second petitions respectively, have asked that they be heard separately.
For his part, Robertson said that the two APNU+AFC petitions are different and begged the court to consider them separately. He said that while there is a “slight” overlap in the issues raised between the two petitions, they are for the most part different.
He said that in the second petition for example—in which he represents the petitioners, it goes into substantial detail and thus requires the substantial taking of evidence which the court may find convenient to deal with separately, as opposed to the first petition.
Justice George-Wiltshire, however, disagreed that the two petitions could not be heard together.
She said that when one looks at the reliefs being sought in both petitions, they are almost identical; adding that while each petition is taking two different routes, they are both hoping to arrive at the same destination.
In this vein she said that it would make no sense to hear the matters separately where the petitions are seeking the same reliefs.
Robertson said that while it may be true that the reliefs sought are almost the same indeed, because of the different nature of the two petitions, the course of trial is likely to proceed differently for each.
He added that given the difference in “method of proving” in the two cases, it could lead to confusion, especially considering the number of attorneys involved in the matters also.
This prompted the judge to enquire about confusion on whose part. Robertson then said that some of the orders sought in one petition may not necessarily apply in the other.
He said that “we don’t want to create an issue where people try to use procedures and applications relevant in one” to oust the other or vice versa.
The judge, however, assured that this would not be the case and that the Court for one would not be confused, noting that when orders are made it would apply to the relevant petition.
Forde then asked the Court not to arrive at a settled position on this issue just yet.
Noting that petition one in which he represents the petitioners is unlike the second petition which requires the calling of witnesses, Forde said that the first petition raises one substantial legal issue which deals with whether Section 22 of the of the Election Law (Amendment) Act is constitutional and that the reliefs sought are simply consequential to this issue.
On this point he expressed the view that petition one can be heard and determined separately from petition two which deals with evidential issues.
Forde impressed upon the judge not to make a decision yet as to whether the matters would be heard separately or together since it is still at the preliminary stage.
The judge acceded to his request.
The Coalition has filed two petitions challenging the results of the March 2nd General and Regional elections which saw the People’s Progressive Party/ Civic (PPP/C) winning the seat of government.
The results of a national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.
In the first petition, the Opposition—through petitioners Claudette Thorne and Heston Bostwick – wants the court to determine among other things, questions regarding whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly have been lawfully allocated.
They depose through their attorneys that the elections were unlawfully conducted and/or that its result, “(if lawfully conducted)” were affected or might have been affected by unlawful acts or omissions and that what was therefore declared by the GECOM in pursuance of Section 99 of the Representation of the People Act (ROPA) was not lawfully conducted.
Thorne and Bostwick note that Order No. 60 of 2020 by which the recount was facilitated was pursuant to Article 162 of the Constitution and Section 22 of the Election Law (Amendment) Act.
They, however, contend that Section 22 is unconstitutional in that it violates the separation of powers and impermissibly usurps the legislative powers of Parliament.
Meanwhile, through petitioners Monica Thomas and Brennan Nurse, the Opposition in the second petition is contending that the elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions.
They say that the national recount of votes uncovered numerous discrepancies and irregularities which affected the integrity of the entire electoral process, thus rendering it null, void and of no effect.
Among the contentions raised are that GECOM failed to discharge its constitutional functions, exercise general direction and supervision over the registration of electors and the administrative conduct of all the elections of members of the National Assembly.
The women argue, too, that GECOM failed to discharge its constitutional and statutory duty to complete the house-to-house (h-t-h) registration process and to create, maintain and use for electoral purposes a “credible list of electors.”
They are hoping that the court will make corresponding orders.
They also want the court to specifically order the Chairman of the Guyana Elections Commission (GECOM) to declare its Presidential Candidate, David Granger “the duly-elected President of Guyana in accordance with Article 177 of the Constitution” and to nullify the outcome of the polls and to declare President Irfaan Ali to be illegally holding office.