By Patrick Denny
Stabroek News
March 28, 2001

Counsel for the Elections Commission, Ashton Chase SC, will today wrap up submissions on behalf of the respondents, to the application for a writ to stay the swearing in of President Bharrat Jagdeo.

Chase, as he has done before, will urge the court to refuse jurisdiction in the matter. He will also reiterate the submission that the instrument signed by Chairman of the Elections Commission, Maj Gen (rtd) Joe Singh, that President Jagdeo was the winner of the presidential elections, precluded the court from taking any action.

Yesterday, counsel for the applicant, PNC REFORM candidate, Joe Hamilton, completed their submissions in which they sought to persuade the court presided over by Chief Justice Desiree Bernard, that it did have jurisdiction to hear the case.

Continuing from Monday, Roysdale Forde, a member of Hamilton's legal team cited authorities to show that despite the provisions of Article 177(6), the court had a supervisory jurisdiction if the process leading to the issue of the instrument was irregular, invalid and improper.

Forde contended too that Article 177(2) requires the public declaration of the winner of the presidential elections given the words "be so declared".

He also contended that if the court agreed with him, then according to Article 177(6) there would be no instrument before the court which would be conclusive evidence that President Jagdeo had been declared the winner of the presidential election. Forde said that if his submission was rejected then Article 177(6) could be the cloak for a number of breaches of the law.

Forde also invited Chief Justice Bernard to look again at her 1998 decision in the Aubrey Norton case challenging the swearing in of President Janet Jagan in the light of the amendment to Article 177(2) which now required the commission to declare the results based on the advice of the Chief Election Officer (CEO). He contended that there were a number of cases which provided for the court to go behind the advice tendered by the CEO to see if this was done according to law. He contended that if the court held that the instrument provided for in Article 177(6) was the same as that for Article 177(2), then recent case law allowed the court to deal with the advice tendered by the CEO. He submitted that the CEO was never in possession of all the documents on the basis of which he could properly tabulate the results.

Counsel for the Attorney General, Doodnauth Singh, SC, disagreed when he responded to Forde's submissions pointing out that the only jurisdiction granted the court by the legislature was that given the Court of Appeal to enquire into the qualification of a person to be president. He contended that Hamilton could not approach the court to challenge the elections except by an elections petition and that he should not be allowed to launch that challenge under the guise of a prerogative writ.

Ralph Ramkarran, SC, lead counsel for President Jagdeo supported Singh's submission. Quoting University of the West Indies law professor Dr Albert Fiadjoe, he contended that the drafters of Article 177 intended that the President should be insulated from enquiry into his election and that an enquiry into an election of the President could only be indirectly challenged through an election petition.

Further, he contended that Article 177(6) prevented the person named in the instrument provided for under this article. He also urged the Chief Justice to confirm her decision in the Norton case.

Hamilton's contention is that the returning officers are required by law to tabulate the results of the elections in their district as recorded on the statements of poll from the various divisions in the polling district. This tabulation, Hamilton contends, must be done in the presence of the party polling agents and the results publicly announced in the district before being transmitted to the CEO.

However, Khemraj Ramjattan one of the counsel for President Jagdeo, responded to this by pointing out that the law required the results of the various polling divisions in the district to be posted up at the respective polling stations and that this was conclusive proof of the results.

He also contended that the provisions of the legislation required the presiding officers to send a copy of their statements of poll to the CEO as well as the returning officer. His contention was that the public declaration was addressed by the statements of poll being posted up at the polling stations. Ramjattan also argued that even if the returning officer breached the provisions of the law, this could not invalidate the results tabulated by the CEO from the statements of poll submitted to him.

Also, he contended that even if the breaches invalidated the results tabulated by the CEO, the declaration by the Elections Commission chairman could not be quashed, as the law provided for several routes for the results to reach the commission.

About the effect of the Article 177(6) which the respondents' lawyers contend bars an investigation by the court, Forde argued, citing Dr Fiadjoe, that the tendency was to treat constitutional clauses barring investigation into acts of the executive in the same way as similar statutory provisions.

However, Singh urged the court to be guided by the arguments of former attorney general and author of the constitution, Dr Mohamed Shahabuddeen, SC, in the case of Kwayana and her own judgement in the Norton case. In both cases the court declined jurisdiction to enquire into matters related to the presidency.

Yesterday's hearing was adjourned just after 6:00 pm with counsel for both sides anxious to leave the precincts of the court, lest they be trapped in the confrontation between the police and the crowd gathered around the court. (See story on page 15.)

Earlier in the afternoon the work of the court was interrupted by the sound of gunfire as the confrontation turned ugly. When Justice Bernard resumed at 4:30 pm the situation around the court was still tense.

When court resumes today, there is likely to be some indication as to when the arguments by counsel for both sides would be wrapped up. Basil Williams, lead counsel for Hamilton, resisted efforts by the court to respond to the arguments by the respondents today. He wanted to do so on Friday, arguing forcefully that in the absence of affidavits from counsel for President Jagdeo and the Attorney General, there was no indication of the points of law that they would be arguing in their submissions. However, Justice Bernard would not entertain his request indicating her desire to have the matter resolved as quickly as possible. She refuted his suggestions that she was being pressured by the respondents' counsel, explaining that the only pressure was the one she felt because she wanted to move on to other work which had been put on hold because of this hearing. Williams also placed on record his objections to the submissions by the counsel for President Jagdeo and the Attorney General.