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@Former Member posted:

Appeal Court rules Lowenfield must calculate election results based on valid votes


 

In a majority decision, the Court of Appeal yesterday ruled that the Chief Elections Officer (CEO) of the Guyana Elections Commission Keith Lowenfield must determine the results of the election based on a calculation of valid votes.
The order is in keeping with the request outlined in the Notice of Motion filed on behalf of Eslyn David. David had approached the Appeal Court seeking orders in several matters including one which sought to prevent Lowenfield from submitting the recount report to make way for the final declaration of the winner of the 2020 Regional and General Elections.

President of the Appeal Court, Justice Dawn Gregory

The applicant had also asked for the Court’s interpretation on a number of matters including the question of if the phrase “more votes are cast” in Article 177 (2) (b) of the Constitution should be interpreted to mean “more valid and credible votes cast” – an issue which was contemplated by order number 60 for the elections recount.
The 2-1 decision in the case was rendered by the Appeal Court’s President Justice Dawn Gregory, High Court Judge Brassington Reynolds and Appellate Judge Rishi Persaud yesterday.
Justices Gregory and Reynolds both agreed that the Appeal Court has jurisdiction to hear and determine the case under Article 177(4) of the Constitution.
Both Judges alluded to the exclusive jurisdiction of the constitutional provision in Article 177(4), which states, “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; and any decision of that Court under this paragraph shall be final.”
Both Judges also held that an interpretation of the words “more votes are cast” in the context of Article 177 (2) (b) of the Constitution of Guyana to be construed to mean more “valid” votes cast.

Justice of Appeal Rishi Persaud

ISSUES TO CONSIDER In granting the wishes of the applicant, Justice Reynolds considered two main issues—whether the Appeal Court has jurisdiction to entertain the Notice of Motion and whether Order Number 60 of 2020 meant that GECOM had to determine the credible count of the elections.
The Judge held that under Article 177 (4) established a separate exclusive jurisdiction to hear matters regarding the qualification of any person for the Office of President or the interpretation of the Constitution on such matters.
He stressed that the provision is peculiar to the Guyana Constitution and is not be found anywhere else in the Commonwealth Region.
In an overview of the applicant’s case, Justice Reynolds said in his view Order 60 of 2020 vests GECOM with powers and responsibilities – the remedies for which some GECOM officials in some respects are akin to those of the High Court and in others the ordinary jurisdiction and in others other akin to that of an elections Court.
“As a necessary consequence, GECOM’s actions and omissions pursuant to order Number 60 of 2020 are impacted by the constitutional and statutory provisions of both the original and new electoral regime,“ he added.
According to the Judge, it is those specific constitutional provisions that the applicant seeks to the Court‘s interpretation of specific words mentioned. Further, Reynolds said that the Court could not grant injunctive reliefs at this time since the Court could not determine whether Lowenfield’s report is valid or not. He noted that the question of jurisdiction is first and foremost.

Justice Brassington Reynolds

Meanwhile, Justice Gregory’s ruling mirrored the views of Justice Reynolds.
According to her, the court would not be venturing out of its jurisdiction in giving an interpretation, Justice Gregory underscored as she placed emphasis on Article 177 (4) of the Constitution.
She said “more votes cast” has to be interpreted within the terms of the Order which she said has sufficient force to impact the interpretation of those words as it relates to the March 02, 2020 elections.
The Judge explained that, “in light of the foregoing words more votes cast have to mean more valid votes.”
DISSENTING VEIW
Justice Persaud in a dissenting judgment noted held that the Notice of Motion filed under Article 177 (4) is without effect as it lacks the necessary enabling provisions.
According to Justice Persaud, the enabling legislation was outlined as a necessity in Article 177(5) (b) a section that follows immediately after the 177(4). Justice Persaud stressed on” its critical and determinative importance” to complete powers of the Court.
“Article 177 (5) (b) provides subject to the provisions of this constitution Parliament may make provision for giving effect to the provision to this title without prejudice…”
He said that “A proper lawful interpretation of Articles 177 (4) and 177 (5) of the Constitution leaves to his mind “an inescapable conclusion that this Court is without jurisdiction to entertain this motion…”
He said that further that the Article cited deals specifically with the validity of an election of a President based the qualification.
The Judge stressed therefore that the questions about the credibility of the elections ought not to be brought to the Court under Article

Attorney-at-Law Kashir Khan

177(4). He noted that the purposely vested such powers with the High Court.
Justice Persaud said in this regard, he finds himself persuaded if not bound to agree that the High Court has the inherent jurisdiction to deal with matters challenging the credibility of the elections.
Describing the motion as unsustainable, he said the questions raised in the motion can only be answered by way of an elections petition at the High Court.
“Only if there is a difficulty with the decision then can the matter then be brought to the Court of Appeal,” the Judge posited.
STAY OF ORDERS
Despite the majority ruling on jurisdiction to hear the substantive case, towards the end of the judgment Justice Gregory granted a request for a stay of the orders by Attorney-at-Law, Kashir Khan, for joined respondents, The Citizenship Initiative (TCI) and Change Guyana (CG).
His applications was briefly opposed by David‘s Attorney, John Jeremie who noted an appeal would not plausible given that the decision of the Appeal Court is final. He noted that the Constitution forbids an appeal.
“The Constitution clearly states that this decision is final,” the lawyer said. Khan’s three day stay of the orders was therefore acceded to by the Court.
The case is one which the applicant sought the Court’s understanding on a number of issues including whether the Constitution the CEO powers to advise the Chairman of the Elections Commission as to the Presidential Candidate that was deemed to be elected based on the issue of more votes cast in favour of that list.
David also wanted to know whether the CEO is required after calculating the total number of valid votes of electors which have been cast for each list of electors on the basis of the votes counted and the information furnished by Returning Officers to ascertain the results of the election.
The applicant questioned too whether the issue of if more votes are cast” in Article 177 (2) (b) of the Constitution should be interpreted to mean “more valid and credible votes cast” –an issue which he says was contemplated by order Number 60 for the elections recount.
“It is therefore submitted that under Article 177(2) (b) of the Constitution of Guyana the CEO is empowered to determine valid votes cast in respect of the election of a President and to tender such advice to the Guyana Elections Commission,” she noted in the application.

sachin_05

PPP/C, APNU+AFC differ on outcome of Court of Appeal ruling on valid votes

Claudette Singh

Claudette Singh

June 23 2020

www.stabroeknews.com

Following a decision of the Appeal Court yesterday both the incumbent APNU+AFC Coalition and the People’s Progressive Party/Civic (PPP/C) have called on the Elections Commission to make a declaration of the results of the March 2 polls. The two parties however disagreed on what those results are.

By a majority of 2 to 1 the Court ruled that the words “more votes are cast” as per Article 177 (2) (b) of the Constitution of Guyana should be interpreted to mean “more valid votes are cast” in keeping with the definition of valid votes as outlined in Order 60 of 2020 (Recount Order). 

The interpreted Article now provides that “a Presidential candidate shall be deemed to have been elected as President and shall be so declared by the Chairman of the Guyana Elections Commission— if more valid votes are cast in favour of the list in which he is designated as Presidential candidate than in favour of any other list.”

It is now for the Commission led by Justice (ret’d) Claudette Singh to pronounce on what are “valid votes”.  The Order suggests that a valid ballot is one reconciled against a series of statutory documents including ballots cast, destroy-ed, spoiled, stamped, and as deemed necessary, their counterfoils/stubs.

The recently concluded national recount of votes has generated tabulations of valid votes for each district.

Also listed is the number of voters listed and crossed out as having voted; the number of votes cast without ID cards; the number of proxies issued and the number utilized and occurrences recorded in the Poll Book. 

The PPP/C however is dismissive of this definition maintaining that a valid vote is that which was certified as valid during that National Recount.

“We are contending that total valid votes have already been determined by the recount itself by the certifying officer of GECOM, by [Chief Election Officer] Keith Lowenfield in a report and by the Commission when they directed him to use the valid votes to prepare the report under Section 96,” PPP/C General Secretary Bharrat Jagdeo declared in a virtual statement.

He repeatedly referred to the results of the recently concluded National Recount which showed his party winning the elections as a valid count.

These results which were certified by GECOM’s Secretariat, show that the PPP/C’s list of candidates has secured 233,336 votes compared to the 217,920 garnered by the incumbent APNU+AFC coalition. This means the PPP/C has won the March 2 General Elections by 15,416 votes. Based on the figures, the PPP/C will have 33 seats in the new Parliament, the incumbent APNU+AFC, 31, and three parties: LJP, ANUG and TNM will share one seat in a list joinder.

The Coalition however has claimed that that tens of thousands of votes cannot be deemed as credible or valid having been affected by instances of fraud, discrepancies and anomalies. These allegations made by the party however remain unsubstantiated.

“They were numerous instances of voter impersonation (dead persons and migrated persons registered as having voted), missing ballots, unstamped ballots, missing poll books, missing oaths of identity and unsigned oaths of identity, more ballots that electors found in ballot boxes among other grave issues,” they contend.

Vindication

According to the APNU+AFC yesterday’s ruling is vindication.

 “It is a confirmation of the party’s position that a final and credible count as contemplated by Order No. 60 of 2020 does not mean a mere numerical tabulation of votes but an assessment of the credibility of votes as contemplated by Order No. 60 of 2020,” they stressed while arguing that illegitimate votes, cannot be included in the consideration of ‘valid votes’ to determine a credible outcome.

The party has found support for its position from the Chief Election Officer who in a controversial report to the Commis-sion suggested that only 185,260 votes cast can be considered valid. The verified figure from the National Recount is 460,295 votes.

Of the number of votes deemed valid by Lowenfield the majority was cast in favour of the incumbent as the alternative count grants the coalition 125,010 votes and the PPP/C 56,628.

The evidence used to deem nearly 60% of votes invalid includes breaches of polling procedures outlined in the Representation of the People Act and the official manual for Presiding Officers and other Polling Day Officials (Revised 2019) as well as alleged voter impersonation.

None of these claims have however been tested in a Court of law and GECOM previously declared that it does not have the ability to conduct the necessary investigation.

In a statement last Thursday, Singh maintained that GECOM does not have the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein.

“Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election,” she explained adding that though it resorted to Article 162 (1) (b) of the Constitution to give itself the authority to conduct the national recount, GECOM cannot clothe itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election.

Justice Brassington Reynold’s yesterday ruled that the recount order does clothe the Commission with this jurisdiction. He was the only judge to make that ruling.

Jagdeo meanwhile drew attention to the Certificates of recount issued for each electoral district which clearly state that it records the “valid votes cast for each party’s list of candidate.”  He reminded that these certificates were signed by all contesting parties except the Coalition.

“When the Court of Appeal said more votes mean more valid votes we agreed with that because it is part of statutory documents,” he stressed.

Django

Guyana constitution is for sale by the sanctimonious leader of APNU/PNC... a few months ago they add the word "absolute'' in front of the constitution  to define majority, yesterday they add VALID infront majority of votes cast. Guyana constitution is trampled upon and some fools were crying tears of joy . The verdict by the court was NOT a win for these bullies, lets hope GECOM redeem it self with some credibility and declare PPPC the winner.

FM

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MY OPINION: CLAUDETTE SINGH IS NOT RESTRAINED BY THE COURT’S DECISION
Jun 23, 2020 Features / Columnists, Freddie Kissoon
I am typing this piece here before I could read the different interpretations of the legal minds on the Court of Appeal decision. But this I know as a layman, the CCJ will not accept the 2020 election as fraudulent if it does not see the evidence in front of it.
This is my position on the Court of Appeal decision. If Claudette Singh does not declare a winner, which she legally can, the PPP will go to the Caribbean Court of Justice (CCJ). Once more the CCJ will give a decision that reflects purely on Guyana’s jurisprudence. First we had the Court of Appeal affirming President Granger’s right to appoint a GECOM chairman on his own after he did not find a fit and proper person from an opposition’s compilation of 18 names.
The CCJ clearly showed that the Carter-Price formula in the Guyana constitution was explicit in its intention to remove the unilateral capacity of the president and that he had to make a selection based on the Carter-Price article in the Constitution.
Next was the question of what constituted a majority of 65. The judges in the Court of Appeal ruled that a majority of 65 starts at 34 and not 33. When the appeal was heard before the CCJ, one judge had no-nonsense words to say about the fiction of 34 constituting a majority of 65.
We will now go to the CCJ on Lowenfield’s macabre declaration that a substantial majority of ballots were fraudulent without substantial evidence. Once you are dealing with a court of law, evidence becomes the fundamental requirement that guide judges.
The main dimension of the election drama that one must bear in mind at all times is the fact that the international community will not take into consideration any court pronouncement in its foreign policy decision on the legitimacy of the re-election of David Granger. The die is cast as I write. International society believes that the APNU+AFC lost the 2020 election and it will not recognize a Granger presidency. The list includes the EU, USA, Canada, Commonwealth, and the OAS. CARICOM has not pronounced on its attitude if Granger is sworn in but two issues are important when one looks at how CARICOM will move. One is the pronouncement of the CARICOM recount team that the election reflected the will of the electorate. Secondly, the incoming chairman is of the opinion that Granger has lost. How against those two graphic facts CARICOM is going to accept a swearing in of Granger?
Whatever GECOM does after this court decision, the important international actors that are essential for the survival of Guyana will not accept an APNU+AFC government because of two reasons; it opens the door to a flourish of rigged elections in the world and as a spin-off from that it gives legitimacy to unelected regimes.
One of the constituents in the APNU+AFC entity, the Justice for All Party, has called upon his own party to acknowledge defeat. The leader of the AFC has virtually conceded defeat. Why then would international society disregard the validity the CARICOM report and the documentation from their own observer-missions and recognize a government of ANU+AFC? It is not going to happen.
I don’t believe even in their wildest imagination, the APNU+AFC leadership will sit comfortably in office if GECOM for one reason or the other catapults the APNU+AFC into power based on the miasmic tampering of the election. They know such power will be fleeting, lastly perhaps only months.
I don’t know what GECOM will do; it is anyone’s guess. Speaking personally, I am not a fan of Claudette Singh. My layman’s knowledge tells me that the court’s ruling imposed no restraint on Singh. It simply tells her how she must interpret what “valid” votes mean.
She has the power to do that and in doing so, she cannot be faulted because the court recognizes that GECOM has the constitutional authority to make its own interpretations. Again, from my layperson’s knowledge, I think GECOM can arrive at valid votes count because there is nothing in the Court of Appeal decision that prevents an interpretation of valid votes based on the CARICOM report.
Here is my take. Singh should summon Lowenfield, collect his report, interpret what valid means based on the CARICOM recount process, and declare a winner. If there is no quorum, then another meeting does not require a quorum but a simple majority of commissioners. I know in my heart Singh is not going to do that but I believe in my heart that is the legal and morally right thing to do.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

https://www.kaieteurnewsonline.com/2020/06/23/my-opinion-claudette-singh-is-not-restrained-by-the-courts-decision/
FM
@Former Member posted:

Guyana constitution is for sale by the sanctimonious leader of APNU/PNC... a few months ago they add the word "absolute'' in front of the constitution  to define majority, yesterday they add VALID infront majority of votes cast. Guyana constitution is trampled upon and some fools were crying tears of joy . The verdict by the court was NOT a win for these bullies, lets hope GECOM redeem it self with some credibility and declare PPPC the winner.

Lowenfield will do no such thing. He will hand his bosses in the APNU a victory. If he does otherwise, he might as well get ready to flee the jurisdiction. People needs to get it in their heads that GECOM is not an independent body like most believe. It was always pro APNU.

Sheik101
@Sheik101 posted:

Lowenfield will do no such thing. He will hand his bosses in the APNU a victory. If he does otherwise, he might as well get ready to flee the jurisdiction. People needs to get it in their heads that GECOM is not an independent body like most believe.

It was always pro APNU.

Both major Political Parties controls the Commission.

Lots of changes needed in Guyana ,first three , New Constitution ,Independent Elections Commission and Judiciary.

Django

@ Django, why did you delete my post. Your PNC posters posted information here without confirmation and you are blind. This is the very reason most don't have respect for you... carry on.... Irfaan will be sworn in soon.

FM
@Former Member posted:

@ Django, why did you delete my post.

Your PNC posters posted information here without confirmation and you are blind.This is the very reason most don't have respect for you...

carry on.... Irfaan will be sworn in soon.

Post Facts ,not conjecture .

Regarding  the disrespecting crew  they are minuscule.

Django
Last edited by Django
@Django posted:

Both major Political Parties controls the Commission.

Lots of changes needed in Guyana ,first three , New Constitution ,Independent Elections Commission and Judiciary.

U claim that both Political parties control the Commission. So tell me who in this Commission according to u does the PPP control?  We both know that the two main squeeze in Gecom are Lowenfield and Mingo. And we both know which side of the fence they're on.
Let's not kid ourselves, this was a one sided affair from the begining.
When yuh loosing base, he deh lock up long. He din post bail yet?

Sheik101
@Django posted:

Post Facts ,not conjecture .

Regarding  the disrespecting crew  they are minuscule.

Facts: A average of 7 posters per day...  “ minuscule “ ... can it get any better 

FM
@Sheik101 posted:

U claim that both Political parties control the Commission. So tell me who in this Commission according to u does the PPP control?  We both know that the two main squeeze in Gecom are Lowenfield and Mingo. And we both know which side of the fence they're on.
Let's not kid ourselves, this was a one sided affair from the begining.
When yuh loosing base, he deh lock up long. He din post bail yet?

Kudos to  you for calling a spade a spade. 

FM
@Sheik101 posted:

U claim that both Political parties control the Commission. So tell me who in this Commission according to u does the PPP control?  We both know that the two main squeeze in Gecom are Lowenfield and Mingo. And we both know which side of the fence they're on.
Let's not kid ourselves, this was a one sided affair from the begining.
When yuh loosing base, he deh lock up long. He din post bail yet?

The government in power influences the composition of GECOM. This is nothing new.

FM
@Sheik101 posted:

U claim that both Political parties control the Commission. So tell me who in this Commission according to u does the PPP control?  We both know that the two main squeeze in Gecom are Lowenfield and Mingo. And we both know which side of the fence they're on.
Let's not kid ourselves, this was a one sided affair from the begining.


When yuh loosing base, he deh lock up long. He din post bail yet?

 No bail as yet ,perhaps due to being a repeater .

Django
@Former Member posted:

@ Django, why did you delete my post. Your PNC posters posted information here without confirmation and you are blind. This is the very reason most don't have respect for you... carry on.... Irfaan will be sworn in soon.

He does the same to me too.  The truth  hurts him real bad!

alena06

Of course, the Political parties would differ on the outcome but they will have to interpret that "more votes cast" means 'more valid votes cast.

I cannot be more direct than that.  

What I can't believe that The PPP/C had 153,000 dead votes and migrants who were not qualified to vote.  The Coalition only had about 100,000.

This will give the coalition Victory.

 

R

Valid votes case...in accordance with the Order.

In accordance with the Order. In accordance with the Order.

Please keep that in mind. This is what was specifically made mention by the Court of Appeal. 

Credible Valid Votes is not only looking at quantity, but also quality..in accordance with what was specified in the Order.

On such basis, the Coalition has won these elections.

If Lowenfield's decides to use his valid votes figures, which were separate from all tabulated votes, the Coalition would not only have won, but also have a majority in Parliament. The seating distribution will be insane. And there will be no seats for the small parties. This is why ANUG remains silent. LOL.

Lesson learned: Don't Cheat. It can cost you significantly. 

Rochelle
Last edited by Rochelle
@Rochelle posted:

Valid votes case...in accordance with the Order.

In accordance with the Order. In accordance with the Order.

Please keep that in mind. This is what was specifically made mention by the Court of Appeal. 

Credible Valid Votes is not only looking at quantity, but also quality..in accordance with what was specified in the Order.

On such basis, the Coalition has won these elections.

If Lowenfield's decides to use his valid votes figures, which were separate from all tabulated votes, the Coalition would not only have won, but also have a majority in Parliament. The seating distribution will be insane. And there will be no seats for the small parties. This is why ANUG remains silent. LOL.

Lesson learned: Don't Cheat. It can cost you significantly. 

Good luck to Coalition.  They will need it.

R
@Rochelle posted:

Valid votes case...in accordance with the Order.

In accordance with the Order. In accordance with the Order.

Please keep that in mind. This is what was specifically made mention by the Court of Appeal. 

Credible Valid Votes is not only looking at quantity, but also quality..in accordance with what was specified in the Order.

On such basis, the Coalition has won these elections.

If Lowenfield's decides to use his valid votes figures, which were separate from all tabulated votes, the Coalition would not only have won, but also have a majority in Parliament. The seating distribution will be insane. And there will be no seats for the small parties. This is why ANUG remains silent. LOL.

Lesson learned: Don't Cheat. It can cost you significantly. 

ANUG mouths went in their anuses.  

FM

Dem one lovers and social cohesion peopkle and de two opportunis prado lover know if yuh go chuch Sunday and plant yuh agents in GECOM Monday, tues, wed, etc...yuh can corrupt de system and claim de legit vote not valid vote. Hey hey hey...

FM
@Former Member posted:

@ Django, why did you delete my post. Your PNC posters posted information here without confirmation and you are blind. This is the very reason most don't have respect for you... carry on.... Irfaan will be sworn in soon.

Not if they use Valid Votes.

Mitwah
Last edited by Mitwah
@Django posted:

The facts are both sides cheat and got caught. The side that will be more penalized are the the side that stuff the ballot boxes.

Bai...PPP is not saint...is wan bunch of unethical tiefs. But yuh cyant rig eleckshun when de vote count at place of poll. Doan be simple mind. Yuh have to rig am at wan central place like how dem Burnham soldiers use to rig am. Or how one love Lowfield rig am by corrupt de document in GECOM. 

FM
@Mitwah posted:

LOLO will make the determination. 

You cannot allow one person to determine valid votes. What were they counting when the international observers were there during the recount? If there were invalid votes, the GECOM PNC members should have provided valid death certificates and death certificates during their circus show.

FM

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