Govt legal, will remain in office - PPP/Civic Hoyte says court ruling vindicates PNC stance By Patrick Denny Stabroek News January 16, 2001 The PPP/Civic, the People's National Congress (PNC) and the Working People's Alliance (WPA) disagree about the implications of the ruling by Justice Claudette Singh that the December 1997 elections were void. Justice Singh ruled that the statute requiring the use of a voter identification card was unconstitutional as it was violative of the constitution. Her ruling said too that she could not positively declare that such irregularities as were proven might have affected the results of the elections. This was the second plank of the petition brought by Esther Perreira challenging the results of the 1997 elections. The PPP/Civic contended at a mid-afternoon Freedom House press conference that the current government is not illegal despite the ruling by Justice Singh that the 1997 elections were vitiated. PNC leader, Desmond Hoyte in comments after the ruling of the Court was handed down yesterday contended that the government was illegal and that President Bharrat Jagdeo was not legally the President since Janet Jagan, his predecessor was not legally elected. WPA co-leader, Dr Rupert Roopnaraine, was of the view that the ruling had serious implications for the country, adding that it was now in uncharted waters. Both Hoyte and Roopnaraine said that their parties would have to study the transcript of the three-hour-plus decision handed down to a hushed and packed courtroom. At the Freedom House press conference, Ralph Ramkarran SC, counsel for the PPP/Civic in the petition brought by Perreira challenging the results of the elections stated the following as the party's position on the ruling of Justice Singh. "We wish to make it abundantly clear that the Government is not illegal and has never been illegal and the Court has so ruled. The Government is and has lawfully been in place at all times and will remain in place until the March 19th elections." He said that while the PPP/Civic does "not trivialise the Judge's ruling, it must be stressed that the ruling that the elections are vitiated is based on a technical, legal matter and is not based on any alleged irregularity in the conduct of the elections which the Judge found was not sufficient to affect the results of the elections." "The PPP/Civic won the elections. This is confirmed by the ruling", he said too, adding that the party's lawyers "are considering the issue of appeal and we will await their advice before taking any further steps." But despite the ruling that the elections were vitiated, Ramkarran stressed "there is no constitutional crisis since there was no order that the government must demit office." He noted that today, Justice Singh would be exploring with the lawyers the content of the consequential orders, if any, that she should issue. Ramkarran said that he expected that if she should order new elections then she would order that they be held on or before March 19 or a date close to it. About whether she would order the government to demit office, Ramkarran said that issue was not within the purview of the Court. He stressed that whatever order Justice Singh makes, she would be guided by Section 31:1 of the National Assembly Validity of Elections which requires her to take cognisance of the stability of the country as a factor in her decision. That section says "every declaration made by the Court under sections 28, 29 and 30 shall, at the order of the Court, take effect at such time and be subject to such saving of the validity of things done before that time as the Court may in the circumstances, due regard being had to the interest of effective government in Guyana, consider expedient ... ." Hoyte in his comments said too that the ruling had vindicated the PNC's position on the various irregularities such as the manipulation of the distribution of voter identification cards, the issues of the unsigned statements of poll and 103 ballot boxes, whose numbers did not accord with the numbers assigned by the commission, among others. Donald Ramotar, the PPP/Civic General Secretary, who was at the press conference disagreed with Hoyte. He observed that the ruling in relation to the irregularities not affecting the results vindicated his party's position as well as the observations of the foreign observer missions from the International Foundation for Electoral Systems among others and the CARICOM Audit Commission which audited the results of the elections. Ramotar also noted that the PNC participated in the decision to enact legislation providing for the voter identification card as the sole means of identification and had some moral responsibility for its unconstitutionality. Ramkarran denied that the parliamentary parties acted out of political expedience to implement the voter identification law but conceded that he was unsure whether they had had formal legal advice from the Attorney General. Another of the PPP/Civic counsel, Khemraj Ramjattan observed that Justice Singh had found that the evidence led about the irregularities did not contradict the results as reported from the various polling stations. Ramotar also noted the ruling would seem to have some implications for the process now underway for holding elections by March 19. But Ramkarran, while noting that he was not speaking for the Commission, said the present process required verification of the particulars of the individual which would result in a person being issued with a new national identification card or a special identification card that would be used for voting and retained by the Presiding Officer. The new national identification card will not be retained by the Presiding Officer. Asked about the position of Parliament as a result of the elections being ruled invalid, Ramkarran said that Parliament would remain in place as it still had important work to do in relation to the elections preparations now underway. Asked about the implications for the governance of the country from the time the ruling takes effect, Ramkarran said that the ruling had no consequence for that issue but was one for the parties to address. Ruling unlikely to affect current poll preparations -Major General Singh By Patrick Denny The ruling of the High Court that the law requiring a voter to be in possession of a voter identification card is unconstitutional will not affect the preparations for the upcoming elections. This was the view of Elections Commission chairman, Maj Gen (rtd) Joe Singh, yesterday when contacted by the Stabroek News for his reaction to the ruling by Justice Claudette Singh. Maj Gen Singh said that voter identification cards were not going to be used at the March 19 elections. Instead, he noted a new National Identification Card would be issued which could be used for voting. Those who made late claims would be given a special document which would be used specifically for the elections and retained by the Presiding Officer. Maj Gen Singh said that he was yet to see the ruling and that he would like to have it studied by the Commission's lawyers. However, he said he didn't "feel that we are doing anything that is contradictory to the ruling handed down yesterday. The national identification card would not be the only means of identification for a voter." He explained that if a voter's name was on the voters list, there were procedures to cater for identifying him if he turns up without the new national identification card issued to him. Maj Gen Singh said that the presiding officers have been informed of the procedures to be used to verify the identity of the voter. He said too that the presiding officers would have at the polling stations the master registration cards bearing the photographs of the voter to aid the verification process. He noted too that the national identification card would not be retained by the Presiding Officer only the special card issued to persons who had their particulars verified between December 27 and January 4. Maj Gen Singh stressed that the commission will study the decision carefully to determine whether any aspect of its preparations would need legislative action to validate it. Maj Gen Singh was also not prepared to comment on the criticisms in the judge's ruling of the actions of the Chief Election Officer, Stanley Singh, without the Commission having the opportunity to study the decision. But he observed that the judge's comments about the Commission's staff would be taken on board in so far as they related to establishing confidence in the process. How they reacted to the judge's ruling Reactions to Justice Claudette Singh's ruling yesterday in the election petition alternated between great satisfaction regardless of the reasoning behind the ruling and looking for comfort between the lines. Senior Counsel Keith Massiah who had successfully argued the unconstitutionality of the ID cards back in June 2000 said "I thought the judge's decision was scholarly and relevant . .. I had confidence in my submissions. The ID cards was introduced as a precondition in breach of the Constitution and I am glad to see the judge agreed." Ralph Ramkarran SC for the respondent Janet Jagan said he was happy that there had been insufficient evidence to show that the electoral flaws would have affected the results. The use of ID cards while deemed unconstitutional arose from what had been an agreement between the PPP and the PNC and unanimously recommended by the Elections Commission. Ramkarran said the parties would now have to consider an amendment to Article 59 and 159 to allow for ID cards in the upcoming elections. Senior Counsel Peter Britton for the petitioner: "From day one we were trying to establish the question of the breaches. It was never an issue of numbers." Britton said he was slightly disappointed that the judge had not gone further and decided that the numerous flaws would have affected the results. "But once it is a question of fact it lies in the bosom of the judge and I am loathe to question her decision". Doodnauth Singh SC representing the Chief Election Officer said the factual evidence had not vitiated the elections. It was the ID card issue. Singh was unable to determine what the status of the National Assembly might now be, as Guyana was entering uncharted territory. He said the ruling was unprecedented in the Commonwealth Caribbean and said he would be considering an appeal. Senior Counsel Rex McKay representing Desmond Hoyte, in addressing the court after the ruling refuted the statements of Ralph Ramkarran that there was insufficient factual evidence to void the elections. It was only that she had no sufficient bases to do her calculation that had prevented Justice Singh from making the ultimate decision. Numerous procedural errors but unclear if it would have affected results -judge Chief Election Officer deliberately flouted law By William Walker Despite concluding that there were indeed serious flaws in the 1997 elections, Justice Claudette Singh was unable to find that these unlawful acts or omissions would have affected the results. Justice Singh said to do so would be speculation, but in her three-hour ruling she catalogued numerous procedural errors by the Elections Commission including "the deliberate flouting of the law" by the Chief Election Officer Stanley Singh. However, she said his actions did not amount to fraud. Justice Singh pointed out that Article 163 of the Constitution only requires that a petitioner prove that the result of an election "has been, or may have been affected by any unlawful act or omission." In other words the threshold was lower than being beyond a reasonable doubt. In another legal anomaly, the Validity of Elections Act Section 30 states that "the Court must be satisfied for the purpose beyond a reasonable doubt on an election petition that any unlawful act or omission affected the result of an election ..." Justice Singh once again upholding the supremacy of the Constitution said Article 163 would take precedence. She also drew a distinction in Article 163 between the "unlawful conduct" of an election which was a systemic mismanagement of the election process and an "unlawful act" occurring during an election which was conducted substantially within the law. If it was deemed that an election was unlawfully conducted it was not necessary to ascertain whether the results would have been affected. It was, however, necessary to determine if unlawful acts or omissions would have affected the results of a largely lawfully conducted election. Not withstanding the unconstitutionality of the elections as rendered in her other decision on ID cards, Justice Singh based her ruling on the latter "unlawful acts and omissions" test and as such said she was bound to look at the numbers. However even with the 45,000 persons who were said to have voted without ID cards and the 29,000 who were disenfranchised by the lack of an ID card, Justice Singh could not be sure that the results would have been affected. Production and distribution of ID cards Justice Singh referred to the testimony of the very first witness statistician Haslyn Parris who noted that the production and distribution of ID cards was grossly mismanaged. Parris contended that the computer system in place was flawed as it allowed the operator to change a voter's biodata. Parris maintained that of the 28,635 cards not distributed a proportionally larger number were in Region 4 (12,850). Justice Singh said "there would have been an immediate disenfranchisement of these persons' entitlement to vote." Calvin Benn deputy chief election officer admitted that 7% of the ID cards were not distributed and that up to polling day "the problem was not completely solved". Justice Singh also cited testimony that ID cards were produced for persons who had died over 10 years ago. The erratum and "a significant number of voters voted without ID cards" At the heart of the petitioner's case was page 29 of the CARICOM Audit Commission (CAC) report which concluded that some 45,000 persons had voted without ID cards. Justice Singh recalled the strenuous efforts of the respondents to admit into evidence the erratum which corrected page 29 to say that a smaller number of persons had voted without the cards. But she repeated that the erratum was not admissible because it was signed only by the Chairman of the CAC Ulric Cross and not by all of the commissioners on the audit team. In addition, the actual document was not the original and Guyana's antiquated evidence laws did not cater for fax or photocopies. Similarly, efforts to get a fax copy of an erratum signed by all the Commissioners which was sent to PNC leader Desmond Hoyte failed on the same grounds. An unsigned statistical audit of Region 6 submitted by Joseph Farrier, Secretary to the CAC team was also inadmissible. Thus page 29 and its implication that 45,000 persons voted without ID cards stood unchallenged. Statements of Poll Justice Singh referred to the testimony of Elections Commissioner Jocelyn Dow who recalled that there were unsigned statements of Poll, SOPs not countersigned by the polling agents and inaccurate tallying of results on the forms. Commissioner Moen McDoom testified that code numbers had not been recorded on some SOPs. Amna Ally deputy campaign manager for the PNC also recalled numerous irregularities in some 375 SOPs. But Justice Singh noted that Ally did not refute the accuracy of the results on the disputed SOPs. The testimony of a Commission secretary was particularly damning as she said she had helped alter some 20 SOPs including the results. Justice Singh said this testimony remains unchallenged and asked why senior Commission official Ganga Persaud was not called to refute the testimony. But Justice Singh reserved particular criticism for Chief Election Officer (CEO) Singh recalling his evidence that he could not be sure the election process was not flawed. "What impression does this give to the ordinary bystander?" she asked. There was a general feeling that the Commission had to ascertain the results in what was a desperate situation even if it were not according to the relevant act, Justice Singh noted. The judge read out a long list of presiding officers who had testified that the SOPs presented to them in court were not signed by them. Despite the testimony of some 101 PPP polling agents who unanimously said no objections were made to the count by their PNC counterparts, Justice Singh observed that the failure of the PNC agents to object did not validate the irregularities. Ballot Boxes Justice Singh recalled the testimony of election employee Donna Harris in reference to 203 ballot boxes from Region 5 whose code numbers were unverifiable. Stanley Singh failed to respond to the query and put the mix up down to "administrative bungling." The CEO also changed at the last minute the storage of ballot boxes at the Post Office building on Carmichael and Lamaha streets because he said he "feared for the integrity of the ballots". Justice Singh concluded that there was no doubt that in the 1997 elections there were flaws. "The question is whether these irregularities might have affected the results". She briefly considered the figures for each party but decided that there was no evidence that showed how persons without ID cards voted and how those deprived of ID cards might have cast their ballot. It was not therefore possible to ascertain even under the lower hurdle of probability described in Article 163 that the elections results would have been affected. Memorable quotes from the Elections Petition "We are not contending that the votes resulted in a miscount ..we are saying that procedural irregularities demonstrate that the election was not conducted according to the laws governing elections. " Senior Counsel Rex Mckay. "They can't provide one tittle of evidence to support anything ...you can't bury your head in the sand !" Senior Counsel Doodnauth Singh on the accusations of voter fraud . " How can we say that the elections were fair when 25,000 Berbicians voted once and voted again?" Massiah SC " My staff was running helter skelter out of the compound shouting Guyana going to burn down . Doodnauth Singh declare Jagan President !" Stanley Singh Chief Elections Officer . "As an employee of the Elections Commission I felt stabbed all over !" Singh responding to McKay's question whether he felt stabbed in the back by the Chairman's declaration . " The word on the streets was that Stanley Singh was burning Statements of Poll. That is how intriguing ,how distrustful it was at the time .." Stanley Singh on the rumours when he went to burn some lunch boxes behind the Elections Commission. "Some Statements of Poll were not signed but this does not affect a voter's entitlement to have his vote counted " Doodnauth Singh SC "Everyday I leave this court I am subjected to abuse and threats ..Death is not enough for me! " Singh on harrassment by petition supporters. "How could grand conspiracies and irregularities be happening on such a holy day?" Singh referring to election day as peaceful as a Good Friday. Carrying on the biblical theme , Mckay later called Singh's unilateral declaration of the Presidency worthy of Judas Iscariot . "They bit off more than they could chew... and choked " Senior Counsel Keith Massiah referring to the decision by the Commission to use ID cards . "The interests of justice should be served by concluding the petition so as not to be a hindrance to the next elections fixed for January 17 2001 " Rex McKay SC. Jubilation outside court after petition ruling Small pockets of persons relegated to the periphery of the Supreme Court yesterday morning to bear witness to the historic elections petition decision by Justice Claudette Singh were jubilant when it finally came. Despite being kept at a manageable distance by barricades manned by ranks of the Guyana Police Force, and in most cases in the steamy mid-morning sun as the judge took some three hours to deliver her judgement, there were wild cheers of joy as word of the decision was communicated. Many could be seen jumping with joy connoting a feeling of festivity for a decision which many stated was long overdue and necessary. There was initial panic when crowds surged forward when opposition leader Desmond Hoyte on emerging from the courtroom, gave them an acknowledging wave. This was however short-lived as Hoyte was shuttled through the judge's entrance to the courtyard where his vehicle was parked. Many continued to express approval of the decision as attorneys exited the confines of the court. The few that stayed to the end soon afterward began departing and retreating to smaller groups to contemplate the implications of the decision. (Back to top) Decision bound: Working People's Alliance co-leader, Dr Rupert Roopnaraine (left) and former Elections Commission member Jocelyn Dow, entering the courtyard yesterday morning. They were among the audience at the handing down of the decision in the elections petition. (Ken Moore photo) Court asked to address costs for 29-month trial Following Judge Claudette Singh's ruling in the election petition yesterday Senior Counsel Rex McKay immediately rose to ask her to address the "lesser evil" of costs for the 29-month trial. McKay submitted that since the petition had been upheld the costs would have to be borne by the respondents - in particular the Elections Commission. It was the Commission that had called some 278 witnesses to the petitioner's 16. "We were here at the mercy of the CEO (Chief Election Officer) and this ought not to go for nought". McKay said a proper order of costs should be made forthwith and he recalled how flush the Commission had been after the 1997 elections. But Senior Counsel Ralph Ramkarran differed with his learned colleague arguing that the judge had found the election to be void only on the basis of the ID cards' unconstitutionality. As such "a substantial part of the petitioner's case did not succeed." Follow the goings-on in Guyana in Guyana Today