PRESS STATEMENT
BASIL WILLIAMS INCITES LOWENFIELD TO VIOLATE THE LAW
It is an established fact that Attorney General Basil Williams has not won a singular case of worth over the past 5 years. Indeed, many are of the view that the innumerable violations of the Constitution and the rule of law committed by the Coalition Government have been caused by or are a reflection of the type and quality of legal advice the Government receives from the Attorney General. Fresh in the nation’s memory is Williams’ forays in the press almost every day over the past week before Wednesday July 8, 2020, bellowing that the CCJ has no jurisdiction to hear and determine the appeal filed in the Eslyn David matter. As many would have noticed that he switched off his camera when the CCJ delivered its judgment as they tumbled his arguments, one after the other, upside down. Just a day after that ruling he again shamelessly misinterprets and misapplies the law in his purported legal advice to Keith Lowenfield hours after he was directed by the Guyana Elections Commission to prepare the statutory Report using the total votes as per the Certificates of Recount.
Williams does this in spite of the CCJ’s ruling which previously declared the CEO’s unilateral acts invalidating votes to be in violation of the provisions of the Representation of the People Act, the CCJ stating as follows:
[47] By the unnecessary insertion of the word “valid”, the Court of Appeal impliedly invited the CEO to engage, unilaterally, in a further and unlawful validation exercise unknown to and in clear tension with the existing, constitutionally anchored electoral laws. That further exercise, which the CEO was quick to embrace in breach of the Court of Appeal Stay of proceedings, also had the effect of facilitating a serious trespass on the exclusive jurisdiction of the High Court established by Article 163…
William’s clear intent is to attempt, once again, to incite and invite the Chief Election Officer to violate the law and commit another perversity.
Williams’ conduct amounts to a clear defiance of and contempt for the many pronouncements that the Caribbean Court of Justice made only yesterday on identical issues. Needless to say, Williams’ conduct will be drawn to the Court’s attention for its action. Even at this late hour, Williams is still to comprehend that GECOM is an autonomous constitutional institution insulated from political directions and influences of any type. His untutored advice is therefore constitutionally prohibited.
Moreover, he has completely misunderstood and misinterpreted the legal relationship between the CEO and GECOM. This relationship is not a matter for speculation but explicitly set out in the law.
Article 162 (1)(b) of the Constitution states that the Elections Commission:
(a) shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and
(b) shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.
Consistent with 162(1)(a) and 162(1)(b), Section 18 of the Elections Law (Amendment) Act 2000 states:
The Chief Election Officer and the Commission of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission.
Additionally, Order 60/2020 states in pertinent part as follows:
15. For the avoidance of any doubt, the Chief Election Officer and every person appointed or authorized to perform any act or functions by virtue of this Order, are and shall remain subject to the general supervisory power of the Commission.
With the exception of Williams, it must be clear to every reader that the cumulative effect of Article 162(1)(b), Section 18 of the Elections Law (Amendment) Act 2000, and the provisions of Order 60/2020 is that the CEO is subject to the direction and control the Commission and enjoys no “independence” vis a vis the Commission. Therefore, Williams’ contention that Lowenfield can prepare a report of his own liking and not in accordance with the directions of GECOM is absolutely wrong. Under the Representation of the People Act and where there is there is no recount the CEO is always mandated by GECOM and bound to prepare his report based on the declarations of the ten returning officers. Those declarations have been now replaced by the certificates of recount under Order 60/2020. Likewise, Lowenfield is bound to prepare his report based on those certificates and nothing else. Indeed, that is what he was directed to do by the Commission in its letter dated June 16, 2020. This direction has been reiterated in today’s letter. On multiple occasions throughout its judgment, the CCJ emphasised that the CEO cannot unilaterally prepare a report of his own but must at all times prepare the report in accordance with Section 96 of the Representation of the People Act, that is to say, based upon the total votes counted.
For the avoidance of doubt and to clear up any confusion that the William’s may have caused, we refer to the following paragraphs of the Court’s judgment which dismissed Eslyn David’s application to restrain the CEO from complying with the direction of the GECOM Chair, and declared his previous report to have no effect.
[45] Validity in this context means, and could only mean, those votes that, ex facie, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots.48 This is an exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid votes” count towards a determination of not only the members of the National Assembly but, incidentally as well, the various listed Presidential candidates. If the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond this validation exercise, say because of some fundamental irregularity such as those alleged by Mr Harmon, then that would be a matter that must be pursued through Article 163 after the elections have been concluded.
[46] At the point in the electoral process where Article 177(2)(b) is reached, there is no further need to reference “valid votes” because, subject to Article 163 (which is triggered by election petition after the election), the relevant validation process has already been completed. It was therefore unnecessary for the Court of Appeal majority to qualify “votes” in Article 177(2)(b) by inserting before it the adjective “valid” and, in any event, they were wrong to do so. Article 177(2)(b) rightly only needed to reference “more votes” and there was no basis for the Court of Appeal to assume jurisdiction to interpret that provision. It is clear that, under the legal infrastructure governing the electoral process, unless and until an election court decides otherwise, the votes already counted as valid votes are incapable of being declared invalid by any person or authority…
[47] … The idea that the CEO or GECOM could, in an unaccountable, non-transparent and seemingly arbitrary manner, without the due processes and the legal standards established in Article 163 and in the Validation Act, disenfranchise scores of thousands of electors is entirely inconsistent with the constitutional framework. Whatever allegations of irregularity attended those votes (and we neither agree nor disagree as to the existence of such irregularities) must be adjudged by the High Court under Article 163 as was correctly stated by the Chairperson of GECOM.
In the circumstances we call for the immediate compliance with the Constitution, the Representation of the People Act and judgement of the Caribbean Court of Justice, as well as the rejection of the puerile and erroneous advice/opinion of Basil Williams.
People’ Progressive Party
Friday July10th, 2020
