Judge reserves decision
Guyana Chronicle
March 29, 2001
Chief Justice Desiree Bernard yesterday reserved her decision on the
application by Joe Hamilton, a PNC Reform candidate at the March 19,
elections for a prerogative order staying the swearing in of President
Bharrat Jagdeo.
She told the court that she would advise the lawyers when she
intended to hand down her decision, which should take a few days to
complete. The Chief Justice complimented the team of lawyers for
Hamilton, led by Basil Williams, and singled out Roysdale Forde for
special commendation.
In the interim, she has granted counsel for Hamilton leave to lay
over an affidavit, based on a letter to the chairman of the Elections
Commission from the chief election officer (CEO), notifying him about
an error in the tabulation of the votes for a sub division in District
Four. (See story on page one.)
Hamilton's application alleged a number of procedural breaches by the
returning officers and the CEO in the tabulation and declaration of
the results of the elections. Because the alleged breaches would
contravene Section 84 of the Representation of the People's Act,
Hamilton wants the court to stay the swearing in of President Bharrat
Jagdeo, until the returning officers and the CEO satisfy certain
provisions. These provisions require that in the presence of the
polling agents, the votes recorded on the statements of poll (SOPs)
from the polling divisions under his control be tabulated and results
publicly announced in his/her district.
Yesterday, Senior Counsel Ashton Chase, who is appearing on behalf of
the Attorney General and the Elections Commission, made a number of
submissions to demonstrate that the court had no jurisdiction to
entertain the application and that the procedure for challenging an
election because of the breaches complained of was by way of an
election petition.
Responding to Hamilton's affidavit in support of his application and
that of Maj Gen (rtd) Joe Singh, the chairman of the Elections
Commission, Chase said that they disclosed a number of disputatious
matters which could not be adequately explored by affidavit evidence.
He said too that Maj Gen Singh's affidavit also reserved his position
in the event that an election petition was filed.
He also contended that Hamilton's affidavit did not meet the standard
required for the granting of a prerogative order, pointing out that a
number of statements made from the bar table were not included in it
and as such the court could not take account of those statements.
He also argued that the affidavit was replete with hearsay evidence
and that the court was precluded from acting on hearsay evidence in
such matters. Examples of hearsay were the statements by Hamilton that
the ten returning officers did not publicly declare the results of
their districts; that they did not tabulate from the SOPs the votes
cast for each list of candidates in the presence of their
representatives; and that the Elections Commission tabulated the
results from the tally sheets rather than from the SOPs.
"The applicant does not provide any evidence for the draconian
orders being sought," Chase said explaining that in the words of
the old adage that there was not "enough evidence to hang a cat"
much less to overturn a presidential election.
Turning to the question of procedure, Chase observed that whatever
rights an individual might have, the law was a disciplined institution
and whatever course it prescribed must be followed.
He submitted that Article 163(1)(b)(1) gave the High Court exclusive
jurisdiction to hear any matter related to the validity of an election
and that an election petition was the appropriate procedure for
approaching the court.
With regard to the declaration signed by Maj Gen Singh that President
Jagdeo was the winner of the presidential elections, Chase contended
that the court had to accept it at its face value as evidence that all
the conditions were complied with. He stressed that there had been no
allegation of fraud and the advice as a result of which the instrument
was signed could not be enquired into at this time.
Chase further argued that where there were other remedies provided
for by legislation, the court could not issue prerogative orders.
Chase also contended that the Constitution did not provide for direct
challenges to the election of the President, except on the limited
grounds provided for at Article 177(4). This article provides for the
Court of Appeal to hear challenges where "the question depends
upon the qualification of any person for election or the
interpretation of this constitution... ."
Chase argued that the framers of the constitution intended to
insulate the election of the President from a specific challenge and
had provided for the continuity of the Head of State and government of
the country. This, he said, was achieved by the fact that once a
person was elected as president the person holding the post before the
election ceased to be president once the instrument under Article 177
was signed.
He contended that "there should never be a period in which there
is no president and that the court cannot use a prerogative writ to
effect this."
When he responded, Forde cited a case from Tanzania to support his
submission that the intention of the clause could not have been to
cover up a wrongdoing. Also, he said that by not publishing the
declaration, the commission chairman did not fully comply with the
provisions of the relevant article.
Referring to the amendment to Article 177(2), Chase contended that it
was no reason for the Chief Justice to abandon the position she took
in the Norton judgement as the alteration made did not impinge on the
basic principles enunciated in that case.
With reference to the applicant's suggestion that the court should
order compliance with Section 84 of the Representation of the People's
Act, Chase posited that the court had no authority to grant such an
order.
He said that among other things counsel for Hamilton had contended
that they were not challenging or seeking to vitiate the elections,
but that in effect their application was to do just that.
Chase added that while they wanted to have the SOPs tabulated, they
could not show that as a result of such an exercise the results would
be substantially affected. This, he said, was grounds for dismissing
the application.
He contended too that there was no fundamental rights application
before the court as then it would have to come with the provisions of
articles 138-152 of the constitution. Also that if there were, there
was specific procedure as set out in Act 13 of 1988.
Chase also contended that the Canadian cases cited by the applicant
did not touch on any constitutional law which could influence the
court, explaining that in any case Article 8 of the constitution, made
the constitution the supreme law and any other law inconsistent with
the constitution had no place there.
He contended too that the court would be creating a precedent if it
were to use the prerogative writ for stultifying the election process.
Referring to affidavits filed in support of the claim by counsel for
Hamilton that the CEO had summoned meetings with the returning
officers of Districts 3, 6 and 10 so as to comply with the provisions
of Section 84, Chase said that they did not endorse what was said.
Instead, they showed that it was the returning officers who had
summoned the meeting.
Disregarding the affidavit signed by Megan Davis who deposed
incorrectly that she was a respondent in the case before the court,
Chase said that the affidavit by Sandra Adams of Region 10 did not
advance the case before the court as she did not depose anything in
relation to Section 84.
Both Forde and Williams responded to the points which had been raised
by the lawyers for the Elections Commission, the Attorney General and
President Jagdeo. They reiterated that their application was intended
to get the CEO to comply with the law as it went to the integrity and
transparency of the process. They noted that there was sufficient time
for him to do that.
Earlier in the day, the Chief Justice refused to grant leave to
attorney-at-law Lloyd Joseph to make a statement after she had spoken
with him in chambers as suggested by counsel for President Jagdeo,
Ralph Ramkarran SC. She announced that the intended statement was
immaterial to the proceedings before her.
Associated with Chase for the Attorney General were Doodnauth Singh
SC , CML John and Anil Nandlall; for President Jagdeo Ramkarran was
associated with Khemraj Ramjattan and Rafik Khan. With Williams and
Forde for Hamilton were Sean Allicock and Emily Dodson.