Court has Jurisdiction on election matters

July 3, 2015 | By KNews | Filed Under Letters, Source

Dear Editor,

Reference is made to the argument made by Senior Counsel Ralph Ramkaran that the court cannot order a recount of ballots. Others also inferred the court has no jurisdiction over election matter, once Gecom declared a result, as per the Burnham constitution. It is unheard of that a court does not have jurisdiction of a matter under the jurisdiction of the state especially if the matters pertain to the rights of the individuals. In the US, the court applies jurisdiction to matters that are not even within the borders of the state; if the extra-territorial matter affects an American citizen, the court sometimes claims jurisdiction.

An election dispute is a rights matter. Thus, the Guyana court has jurisdiction to effect a ruling on an election matter and to have it enforced by the state. It is noted that the opposition PPP has filed a court election petition. This has brought the focus on how the court will deal with such a politically sensitive case.  The matter is “justiciable” (for reasons stated below) and a judge should not feel intimidated or influenced of the consequences of the outcome as long as it is sound in law and an enforcing peoples’ rights. The petition, among other requests, seeks a flawless computation of election results as an objective means to declare a winner.

I do not know if a recount would alter the outcome. But it is established practice that a voter or a candidate has a right to a recount or even to have a result thrown out if a petitioner provides sufficient grounds for it.

In my studies and teaching of American constitutional law and in my readings of judicial challenges pertaining to elections in other nations (including Canada, Britain, and India), it is unheard of that a court lacks jurisdiction over electoral matters or that it cannot order a voting recount or set aside (or reverse) a declared outcome from an election authority.

There are literally hundreds of judicial interventions on elections in these long established democracies. In the Guyana context, one must understand the reason why Burnham removed jurisdiction of the court over electoral matters – so that his election could not be challenged during the era of rigging. The country has moved away from the established practice of rigging and there is no reason why the court should not adapt to the changing dynamics. In fact, for example, the US constitution says virtually noting on electoral matters. Yet the court claims jurisdiction to settle electoral disputes; candidates routinely seek the court’s intervention to have ballots recounted and to set aside officially declared results. Hardly in an American or Canadian or British election, has the court not been approached to settle an outcome. In several cases, the courts in UK, US, Canada, and India supervised recounts themselves and or ordered new elections where it felt there was gross violations of the conduct of the elections or the counting of ballots or where it felt the officially declared result did not reflect the will of the people.

In very rare cases has a court in a democratic state declared it lacks jurisdiction over any matter. In the US and in India, the court on rare occasion stated that some matters were not “justiciable” because of their political nature and advised political officials (executive and legislative branches) to settle controversial issues through negotiations. Such “rulings” are quite different from saying that a court has no jurisdiction in a matter. Courts can find (loose/liberal) language in a constitution to claim original and appellate jurisdiction. In fact, this is precisely how the US Supreme Court got the power of judicial review in the famous Marbury V Madison case (1803), and since it then has been the final arbiter of all legal or constitutional issues.

Most currently, it is noted that in the US pertaining to the controversial gay marriage ruling, analysts (including lawyers) had claimed the court had no jurisdiction over the issue and it was against the law for same sex couples to get married and enjoy the rights of married couples. Lawyers argued that same sex marriage defied the tenets of the American constitution – where it is argued that marriage is between a male and a female. Yet the Supreme Court found significant (implicit right to marry – lose interpretation as opposed to strict constructionist) language in the constitution to legalize (by virtue of the court’s ruling) same sex marriage.

It is an established legal principle that no state shall deprive anyone of the right to life, liberty, or property without due process of law or deny any person equal protection under the law. Those rights are sufficient ground for a Guyana court to claim jurisdiction over electoral matters even if the Burnham constitution says otherwise. In legal parlance, property is not narrowly confined to material possessions. One’s vote is also property. And everyone is equal. So all votes are equal and must be properly counted and accounted for, thereby giving the court the authority to make rulings pertaining to electoral matters.

Critics may claim that the curve of constitutionalism in Guyana doubt differs significantly from the development of American constitutional law. Our constitutionalism is based on British traditions and practices (although England itself does not have written constitution).  But so do India, Pakistan, Bangladesh, Australia and New Zealand and in all of these societies, the courts overruled official election results and ordered recounts or new elections. Mrs. Indira Gandhi had her 1975 election victory thrown out by the Indian High court and affirmed by the appeal court.

In Guyana, some may argue that foreign judgments do not lend themselves well to the interpretation of Burnham’s constitution. But, where they are relevant, and where genuine parallels can be drawn, the court can apply an overseas ruling valuable to a local case providing there is logical reasoning behind the decision.

All courts and constitutions around the globe adhere to a principle of rights and freedoms including to fairly choose a government. Guyana’s is not different.  The court in Guyana can follow a similar trend as obtained abroad to hear an election petition and render a fair verdict that does not violate the right of any voter or candidate or render anyone less equal.

Vishnu Bisram