Justice Claudette Singh, the Chair of the Guyana Elections (GECOM), has asked the Court of Appeal to throw out the motion before it in which an APNU+AFC supporter seeks to block the declaration of the results of the national vote recount which gives the PPP victory over the Coalition by 15, 416 votes.
In her affidavit, seen by the News Room, Justice Singh argues that any question about the election can only be determined by a competent Court through an elections petition to determine what weight they have, “not GECOM and certainly not the Chief Election Officer (CEO).”
“If GECOM is to embark on this credibility exercise what basis should be used to determine the issues of validity and credibility? The letters from one party? The opinion of the CEO? Can GECOM just use the CEO’s opinion without giving interested parties an opportunity to be heard? Is GECOM to hold court and take evidence? The Applicant is asking GECOM to embark on a trial,” she states.
The CEO, Keith Lowenfield, in presenting an initial report of the national vote recount and had attached a document which resembles the allegations of irregularities raised by APNU+AFC, and then calculated the votes affected by those irregularities; in so doing, he sought to make APNU+AFC the winner of the elections when the recount figures of votes certified as valid showed the PPP winning. The GECOM chair has already disregarded the opinions he gave and asked him to present a report based on the results of the recount and nothing else.
Citing past legal decisions written by courts, Justice Singh argues that irregularities during the progress of the election process, even if it serves to vitiate (or nullify) an election, should be brought before the High Court by way of an election petition. What is more, she argues that these irregularities cannot be the subject of dispute before any court while the election process is underway and ends in the declaration of results.
“The above interpretation of the constitution is still held sacrosanct that the election must be allowed to be completed and culminate in declaration of results,” Justice Singh tells the court in her affidavit.
The applicant, Eslyn David, has sought a declaration that GECOM has failed to act in accordance with the terms the recount order to determine a final credible count and or the credibility of the result of the March 02 elections. She also wants an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution of Guyana. Further, she wants the Court to prevent the Chief Elections Officer Keith Lowenfield from complying with the Direction of the GECOM Chair from submitting his report of the results of the recount without determining the credibility of the elections.
Eslyn’s application was filed pursuant to Article 177 (4) of the Constitution of Guyana. Article 177(4) provides: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution….”
Justice Singh, in her affidavit to the Court, submitted that the duty of the court is not to re-write the constitution but to interpret what is already stated in the constitution clearly.
She argued that when one reads the entire article 177, the article contemplates a person already declared by GECOM as President.
“It is respectfully submitted that the electoral process has not reached this stage,” she stated.
Further, she pointed out that Article 133(1) vests the Court of Appeal to hear appeals from the High Court on questions on constitutional interpretation. Hence the first two orders sought seeking a Declaration that GECOM failed to act in accordance with its order and secondly an interpretation of the words “more votes are cast” and the affidavit filed in support do not touch and concern the qualification of a person elected President.
“It is respectfully submitted that the application is misconceived and ought to be struck out forthwith,” the GECOM Chair states in her affidavit, which was submitted by her attorney Kim Kyte.
In any event, Justice Singh said the Order sought by the applicant amounts to the interpretation of an Order and not the Constitution.
It is further submitted that the relief sought in paragraph (a) of the Notice of Motion cannot be determined by this court but instead must be pursued by an Election Petition.
Further, the GECOM chair pointed out that Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election.
In this regard, she argues that GECOM could not have thereby cloth itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election.
“It is submitted that the Commission cannot arrogate onto itself a jurisdiction to determine the credibility an election or any unlawful act since no specific power was conferred on it under Article 162 (1) (b) to so do,” Justice Singh’s affidavit states.
She says the court should not be asked to act in vain.
“Even if the court grants the orders sought, what is the next position? Can this court direct GECOM what to decide? Can this court order GECOM to hold a fresh election? Are these orders even sought? The short answer is no since this is not an election court,” Justice Singh’s affidavits states.
She argues that the forum of the elections court is the appropriate place to assess the evidence to determine if it has crossed the threshold of sufficiency to vitiate the 2020 Election and GECOM does not have that jurisdiction.
“For the reasons advanced above the Notice of Motion should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the 2020 Elections,” Justice Singh states.
