Hearing continues tomorrow
Respondents ordered to file affidavits
Stabroek News
March 25, 2001
Chief Justice Desiree Bernard yesterday adjourned to tomorrow, the
hearing into an injunction being sought by the PNC REFORM to prevent
the swearing in of Bharrat Jagdeo as elected President of Guyana.
She ordered that the Elections Commission, the Attorney General and
President Jagdeo be named as respondents to the application for the
prohibition order filed by lawyers on behalf of PNC/R candidate Joseph
Hamilton.
She also ordered counsel for Hamilton to effect service of the motion
and affidavit on the lawyers for the respondents, who have agreed to
accept service on behalf of their clients. With respect to the
Elections Commission she ordered that it provide an affidavit
detailing the circumstances under which the instrument declaring
President Jagdeo as President was made.
Senior Counsel Doodnauth Singh and Ralph Ramkarran, counsel
respectively for the Attorney General and President Jagdeo had
submitted on Friday that because the instrument had been issued by
Chairman of the Elections Commission, Maj Gen (rtd) Joe Singh, the
court had no jurisdiction to hear the application. They also submitted
that the allegations in the affidavit could not be moved by a
constitutional motion but should be the subject of an elections
petition.
At yesterday's hearing, legal adviser to the Commission, Bryn
Pollard, SC, informed the court that both the governing PPP/Civic and
the parliamentary opposition parties were represented on the Elections
Commission. He said too that they (the six commissioners) were present
when the instrument was signed and that it was the intention to
publish it in an extraordinary issue of the Official Gazette on March
23. However, to prevent a recurrence of the events of 1997, Pollard
said, the commission held back when Justice Bernard informed that the
application had been made to the court for a prohibition order to
prevent President Jagdeo from being sworn in.
He said too that when Chief Election Officer (ag) Gocool Boodoo,
announced the results of the elections on Friday all the commissioners
were present and there was no dissent.
When the hearing resumed yesterday, Basil Williams, lead counsel for
Hamilton, contended that by raising the preliminary objections,
counsel for the Attorney General and President Jagdeo were seeking to
gain an unfair advantage as his client would have to reveal his case
and they would be able to tailor their affidavit in answer
accordingly. He contended that neither of the two parties was properly
before the court.
He also contended that the statement by Singh that the results were
announced at 4:30 am was an attempt to introduce viva voce evidence
and that only once in 100 years had that procedure been followed in
cases such as the one before the court.
Williams also contended that the instrument issued by the commission
under Article 177(2) was different to that required under article
117(6)(a) and (b) with the latter being required when there was a
challenge to the person declared as elected to the presidency.
This argument led Justice Bernard to consider the fact that a
swearing-in ceremony was only the outward formality of something
already done and that the issue was really the declaration of
President Bharrat Jagdeo as the winner of the presidential elections
by the instrument signed by Maj Gen Singh.
Responding to the submission that Hamilton had used the wrong
procedure to move the court, Williams contended that the motion was
not an attempt to vitiate the elections but to have the returning
officers carry out their duties as mandated by the Representation of
the People Act.
At the conclusion of Williams's response, Justice Bernard, in the
interest of the urgency she felt the case needed to be dealt with,
ordered the persons named as respondents to file the necessary
affidavits setting out all the matters that should be included in
their answers. She said that she was abandoning the normal procedures
with relation to the filing of affidavits to facilitate the speedy
determination of the case.
Lead counsel for the Attorney General, Ashton Chase, SC, told the
court that his client did not intend to file any affidavit, as it was
his client's contention that the court had not jurisdiction to touch
the election of the President.
He said that he would even be bold to say that the instrument signed
by Maj Gen Singh was a genuine document on which a brake had been put
because of the application before the court.
He also criticised Hamilton's affidavit pointing out that among other
things it had omitted to state how many persons had been affected by
the allegations made therein. Also, that if the returning officers had
failed to discharge their statutory duty those details should also
have been included.
Before adjourning the case to tomorrow, Justice Bernard noted that
every four or five years the country goes through a period of
self-flagellation which takes about a year to heal and when the wounds
are healed, begins the process all over again.
She stressed that "we must find a way of healing the wounds that
exist", adding that the emotions of the crowd gathered outside
the court were high. Justice Bernard had had to adjourn the hearing
earlier, while the crowd was moved from the immediate vicinity of the
court as noise was invading the courtroom making it difficult to work.