The CCJ and jurisdiction argument

Jun 27, 2020 Letters

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DEAR EDITOR,

As was reported (KN June 26), the CCJ gave several directives and instructed the lawyers to be guided by their submissions on four points: Why the court has jurisdiction if it assumes jurisdiction; what would be consequences if it rejects jurisdiction; what would be the consequences; and the substantive arguments of why it must accept or reject jurisdiction and a potential ruling with orders.
The government argues that CCJ has no jurisdiction because the Burnham constitution states Court of Appeal (CoA) ruling is final. I studied and taught American Constitutional and International Law. From my extensive studies, final courts (like CCJ, Privy Council, India Supreme Court, etc.) are hesitant to visit rulings of CoAs whose judgments are considered final especially on election issues because elections and results must not be delayed. However, when matters pertaining to fundamental voting rights are raised, superior courts with final authority do assume jurisdiction and adjudicate on lower court rulings but on narrow fundamental issues. India Supreme Court, Privy Council, Australia Supreme Court, New Zealand Court, Canada Supreme Court, South Africa Supreme Court, etc. visited matters to affirm or set aside CoA rulings on election matters. And time is not an issue as a country is waiting four months for the results.
The CCJ has original (though not on election) and appellate jurisdiction. Celebrity attorney Ramesh Maharaj of Trinidad challenged rulings on (unstated) fundamental rights with court claiming lack of jurisdiction and he won at the Privy Council reversing lower court judgments. He showed the court how it can intervene on basic rights issues even when laws prohibit such intervention. So CCJ can be approached when fundamental rights (as voting is) are breached; there are countless precedents of such judicial interventions by higher courts to correct what were considered final rulings. For example, when the votes of Black Americans were rigged, analogous to what has happened in Guyana, the Supreme Court intervened and corrected it. The CCJ has an historic opportunity to claim original jurisdiction with a novel ruling and build credulity of its jurisprudence.
Also, CCJ may claim jurisdiction since the Act of Incorporation (2005) of the CCJ replaced Guyana’s CoA (1980) as its final court of appeal. Before 2004, appeals were not permitted outside of CoA. After the rigged election of 1968, Burnham abolished all appeals to the Privy Council. An amendment to the constitution took place in 2004 by then President Jagdeo with the CCJ replacing the CoA as final court of appeal effective April 2005. That gives CCJ jurisdiction.
Also, jurisdiction can be claimed by human values (rights). A society is organic and dynamic. The law’s meaning must adapt to changing circumstances as in the US. Constitutions are subjected to interpretation (elasticity of law) by learned judges of final court to meet the needs of changing times. The US Supreme Court is known for its changing interpretation of the constitution. So even if the constitution says the CoA is the final court of appeal on some election matter, it can be appealed if a person’s vote would be rendered invalid without due process. Some 115K votes are not being counted, a violation of a fundamental right. This gives CCJ jurisdiction to visit the CoA ruling. One cannot invalidate a valid vote by whim or fancy or on some personal prejudice or personal interpretation. For a people who came out of indentureship, slavery, and decimation of natives in the Anglophone Caribbean, the ability to choose a government is a fundamental right. It cannot be taken away through fraud and shenanigans or personal interpretation of election officers.
It would appear that the majority ruling in CoA treated the jurisdictional issue lightly, using recount to hear the case and make an order. But the recount exercise is subsidiary or subservient to a parent legislation. The court erred in issuing an order that trumps the constitution. And, it was premature for any party to go to court unless harm was committed. The issue of harm did not arise as GECOM did not make a declaration as yet. One could only approach the court after the GECOM declaration. And this is done via a petition. Thus, the CCJ may assume jurisdiction determining that the CoA erred in law.
In addition, there is a long-standing principle (based on stare decisis) in law in which a CoA erroneously accepts (or exceeds) jurisdiction of a matter and pronounced on it – in this case interpreting Article 177, it can be reviewed. The CoA accepted jurisdiction of an extraneous matter that does not fall within its remit and made an order outside of its powers. This gives the CCJ the jurisdiction to visit the ruling and may very well set it aside if so proven by appellants.
The clause under which the CoA claims jurisdiction deals with qualification of being elected President. It is not about valid or credible votes. Matters pertaining to credible or valid votes or fraud are dealt with in an election petition. These matters go to the High Court after the declaration of the results, not the CoA. It must be noted that the CEO has no power to decide what are valid votes; that is decided by ROs or the recount agents and were already decided upon. The CEO or GECOM cannot overturn valid votes after a legitimate exercise; only the court can.
The entire world will be watching the CCJ in action as it pronounces on leave to appeal, jurisdiction, and the substantive matters raised in the appeal. The CCJ would be mindful that its establishment has given rise to speculation concerning its approach to judgments handed down by CoAs. Having disposed of Guyana’s arithmetic case, now the court is asked to examine a case having to do with basic English – what does “more votes than” mean. The CoA took pain to stress ‘valid’ to law that is already in the law. Guyana’s constitution already states that only valid votes are used to declare the results of an election (The Caricom witnessed recount also refers to valid votes in its legal SORs. Between 1966 and 1992, invalid or bogus votes were used to declare outcomes as is being attempted now).
One must keep in mind that the CCJ is still in its infancy as compared with other final courts like Privy Council or India Supreme Court. The CCJ has an opportunity to elucidate on ambiguity in the meaning of clauses in a constitution especially pertaining to the declaration of the outcome of an election that is considered to be final in CoA. Rulings would help foster the development of an indigenous Anglophone Caribbean jurisprudence. It would not disappoint and would render a profound judgment.

Yours truly,
Dr. Vishnu Bisram

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