The Court of Appeal’s decision should be appealed

Apr 10, 2020 Features / Columnists, Peeping Tom

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The Prime Minister of Trinidad and Tobago has expressed his concern over a recent decision by Guyana’s Court of Appeal. He has interpreted that decision to mean that CARICOM was involved in an illegality when it agreed to ‘supervise’ a recount of the votes cast in Guyana’s 2020 elections.
That recount was supposed to have been undertaken under the ambit of GECOM. CARCOM had brokered a resolution to the ongoing electoral impasse in which Leader of the Opposition Bharrat Jagdeo and President David Granger had signed an aide memoire for the consideration by GECOM. The agreement provided for the constitutional authority of GECOM to be respected.
The electoral body subsequently agreed to undertake a recount of the votes in all Districts. It agreed to do so unanimously. This decision triggered what now appears to have been a constitutional challenge to having CARICOM “supervise” the GECOM’s recount.
The upholding of part of the Appeal turned on the constitutionality of CARICOM’s role vis a vis GECOM. The decision of the Court of Appeal ought to be challenged at the Caribbean Court of Justice (CCJ).
Unfortunately, those who have been through the bruising legal battles relating to the elections are not likely to want to detain the CCJ in what may appear to be of mere academic importance. But I respectfully submit that the issues which emerged from the Court of Appeal ruling are far from academic.
The first is the question of jurisdiction. The Constitution (specifically Article 163) states that parliament may make provision for determining whether any election has been lawfully conducted.
The Representation of the People Act prohibits any court from inquiring into the exercise of any function of the Elections Commission, except where provided for by any other law made under Article 163 of the Constitution.
There is such a law. The National Assembly (Validity) of Elections Act, authorises challenges to decisions and actions of GECOM via an election petition. This was the basis of the Full Court’s ruling strike out the jurisdiction of the High Court to hear the challenge mounted against CARICOM’S role in the recount.
I respectfully submit that the High Court had no jurisdiction to entertain the challenge made by Ulita Moore. The Constitution, read in tandem with the National Assembly (Validity) of Elections Act, limits the High Court’s consideration into the legality of the actions of GECOM to an election petition. It is only via such a means that the constitutionality of actions of GECOM can be challenged.
This view has found support by the Caribbean Court of Justice which at [38] in Christopher Ram and the Leader of the Opposition, Attorney General, the Guyana Elections Commission and Anor, said… “The Court has no jurisdiction to determine matters which must be raised by way of an election petition filed otherwise than as prescribed by Parliament. The court cannot take it upon itself, in violation of those Rules, to enlarge its jurisdiction…”
I therefore respectfully submit that if the High Court did not have jurisdiction to hear the Ulita Moore’s case, then the Court of Appeal also did not have jurisdiction. That jurisdiction could not have been enlarged by virtue of a submission that what was being challenged was the usurpation of the role of GECOM or the constitutional right to equal treatment by Officers of GECOM. Even if that was the case, any challenge has to be via an election petition.
I do not support the contention that what was being challenged was not GECOM’s right to undertake a recount but the constitutionality of the recount. This distinction is based on a misconception, as pointed out by the Prime Minister of Trinidad and Tobago as to CARICOM’s role.
The Constitution gives GECOM the right to exercise general direction and supervision over the elections. There is no explicit prohibition of GECOM delegating any of its functions and therefore in the exercise of its right, GECOM can delegate any of its functions. For example, if GECOM wants to delegate its public relations, it is free to do so because there is no constitutional prohibition stopping it from so doing.
In any event, the evidence is tenuous that CARICOM intended to usurp the functions of GECOM. The Aide Memoire signed by the President and the Leader of the Opposition recognised the constitutionally-mandated role and independence of GECOM to decide on the recount. GECOM did so decide.
The Court of Appeal decision should be appealed so that it can rightly be relegated where it belongs.

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

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