In her written submission to the Court of Appeal, Chairperson of the Guyana Elections Commission Justice Claudette Singh has asked for them to reject the Notice of Motion filed by APNU/AFC supporter, Eslyn David, who is seeking to block the Commission from moving ahead with the much anticipated declaration of the March 2 elections results.
“…the Notice of Motion should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the 2020 Elections,” detailed the submission filed by Attorney Kim Kyte on behalf of the GECOM Chair.
She reminded the Court that a Constitution is no ordinary statute but the source of legislative and executive authority.
To this end, Kyte “…submitted that the duty of the court is not to re-write the constitution but to interpret what is already stated in the constitution clearly. The words themselves best declare the intention of the framers.”
She argued that Article 177 (4), under which the Notice of Motion was filed, clothes the Court of Appeal with a “narrow special exclusive jurisdiction” to hear and determine any question as to the validity of an election of a president in so far as that question turns upon the qualification of any person for election or the interpretation of this constitution.
Article 177 (4) states: The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.
According to Attorney Kyte, the marginal note speaks to the “Election of a President”; hence, she further submitted that the words or the interpretation of the Constitution in Article 177 (4) relate to interpretation of the constitutional provisions in relation to the qualification of any person for election to the office of the President.
“The Court of Appeal is therefore not vested with original jurisdiction to hear questions on the interpretation of the constitution outside of this narrow special jurisdiction. It is the High Court which is so vested… Further when one reads the entire article 177, the article contemplates a person already declared by GECOM as President. It is respectfully submitted that the electoral process has not reached this stage. In any event, the Order sought at paragraph (a) of the Notice of Motion amounts to the interpretation of an Order and not the Constitution,” Kyte contended in her submission.
Meanwhile, Justice Singh’s lawyer further posited that Article 133 (1), instead, vests the Court of Appeal to hear appeals from the High Court on questions on constitutional interpretation. Hence, she added, the first two orders sought seeking a Declaration that GECOM failed to act in accordance with its order and secondly an interpretation of the words “more votes are cast”, and the affidavit filed in support do not touch and concern the qualification of a person elected President.
“It is respectfully submitted that the application is misconceived and ought to be struck out forth-with,” she argued.
With regards to the relief sought in the Notice of Motion, Attorney Kyte said this cannot be determined by the Appeal Court but instead must be pursued by an Election Petition.
It was noted that Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election. In this regard, the lawyer argued that GECOM could not have thereby cloth itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election.
“It is submitted that the Commission cannot arrogate onto itself a jurisdiction to determine the credibility [of] an election or any unlawful act since no specific power was conferred on it under Article 162 (1) (b) to so do,” she posited.
