FORDE APPEALS — says Justice Chang’s decision in Elections Petition case flawed

By Ariana Gordon

CHIEF Elections Officer, Keith Lowenfield’s lawyer, Roysdale Forde has filed a Notice to Appeal former Chief Justice Ian Chang’s ruling on the Elections Petition brought by the People’s Progressive Party Civic (PPP/C).

The petition claimed that the Validity of Elections Act allows the party to access additional information held by GECOM, and that as such, the court has no authority to quash it.

In the circumstances, Chang ruled that the elections petition brought by the PPP could go to a trial, a decision Lowenfiled’s lawyer feels is “wrong and flawed”.

Lowenfield, through his attorney, had sought to block the summons filed by the PPP through its representative, Ganga Persaud. Forde had submitted that the challenge brought by the PPP was as baseless as it was void of any material facts and sufficient grounds to allow the matter to go to trial.

In his Notice to Appeal filed on Thursday, Forde contends that the ruling made on February 19 by Justice Chang should be wholly reversed or set aside, on the grounds that he erred in law when he failed to direct his mind to varying sections of the summons, dated August 7, 2015, which the PPP sought to have struck out, on the grounds that they disclose no reasonable Cause of Action, and are frivolous and vexatious, embarrassing and oppressive, and an abuse of the court process.

Forde’s contention is that the Elections Petition, dated June 23, 2015, should be struck out, as Paragraph 8 is in breach of Section 140 (2) of the Representation of the People’s Act, Cap. 1:03, and that Justice Chang misconstrued Section 42 of the National Assembly Validity of Election Act Cap. 1:05 in a restrictive manner.

According to Forde, the former Chief Justice erred in law when he found that, notwithstanding, Section 42 of the National Assembly Validity of Election Act must be construed in the context of Articles 163 (1) and Article 163 (4) (c), which enables Parliament to make provisions with respect to Practice and Procedure of the High Court in relation to the Jurisdiction and powers conferred upon it by or under the said Article, “did not rule that the Court had the Jurisdiction to make the Orders sought in the Summons dated the 7th day of August, 2015, as it relates to the exclusive Jurisdiction conferred on the High Court under Article 163 (1) of the Constitution of Guyana.”

The Appeal is also being made on the ground that Justice Chang erred when he ruled that Section 42 of the Validity of Election Act, in its widest construction, would constitute an “enlargement of the jurisdiction of the High Court, conferred on the said High Court by Article 163 (1) of the Constitution of Guyana.”

The attorney argued that the former Chief Justice also erred when he held that Article 163 (1) of the Constitution, by its terms, deprived the High Court of the Jurisdiction to determine whether an Election Petition filed under Section 42 of the National Assembly Validity of Election Act could be struck out.

The former Chief Justice, the Notice to Appeal said, erred in law when he also failed to find that the High Court, as stated in the Election Validity Act, is the same High Court established and constituted under the Constitution of Guyana, and the High Court Act Cap. 3:02.

ERRED
“The Learned Judge erred in law when he failed to find that the High Court Act Cap. 3:02 remained vested with the Powers, Authority and Jurisdiction conferred on it by the Constitution of Guyana and the High Court Act Cap. 3:02 when hearing an Election Petition,” the Attorney argued.

Forde further argued that the Chief Justice blundered when he found that the High Court Act, when entertaining and hearing an Election Petition, was deprived of the inherent, unlimited and original jurisdiction to entertain applications which fell outside the parameters of Article 163 (1) of the Constitution.

Additionally, Lowenfield, through his attorney, argued that “the Learned Judge erred in law when he found that Article 163 (1) of the Constitution of Guyana deprived the High Court, as constituted under the Constitution of Guyana and the High Court Act Cap. 3:02 of its inherent, unlimited and original Jurisdiction when hearing an Election Petition.”

He added that Justice Chang misinterpreted the law when he failed to find that Section that Section 42 of the National Assembly Validity of Election Act “was a specific legislative expression of the extant Powers, Authority and Jurisdiction which was conferred on the High Court as constituted by the Constitution of Guyana and the High Court Act Cap. 3:02.”

The lawyer argues that the former Chief Justice erred when he made a finding and determination with respect to Article 163 (1) of the Constitution and its relationship with Section 42 of the National Assembly Validity of Election Act without affording the Appellant an opportunity of responding to the said finding.

It is also being argued that Justice Chang’s finding that the relief sought in the Summons was excluded and prohibited, by virtue of the Jurisdiction conferred on the High Court by Article 163 (1) of the Constitution.
Forde posits that the former Chief Justice erred in failing “to find that notwithstanding the construction which may be placed on Section 42 of the National Assembly Validity of Election Act Cap. 1:04 that is to say, whether it was expansive and or restrictive in content that there remained vested in the High Court whilst entertaining and hearing an Election Petition the inherent, unlimited and original Jurisdiction of the High Court which was conferred on the said High Court by the Constitution of Guyana and the High Court Act Cap. 3:02.”

In February, Justice Chang ruled that there are sufficient grounds for the matter to proceed while noting that in accordance with Article 163 of the Constitution, the Court does not have the jurisdiction to quash the petition.
Ganga Persaud, in July 2015, had filed the petition on behalf of the PPP/C List of Candidates, claiming, among other things, that notwithstanding there was international acclamation that the May 11 election was free and fair, that was not the case.