APNU/AFC’s petition to stop declaration: Judges to rule today

Guyana Court of Appeal

High Court and COA cannot have same broad range, depth of jurisdiction – lawyer submits

The Court of Appeal will today deliver a landmark decision in the Notice of Appeal case filed by APNU/AFC supporter, Eslyn David, who is seeking to block the Guyana Elections Commission (GECOM) from moving ahead with the much-anticipated final declarations of the March 2 elections results.

The appellate court will hand down its judgement at 13:30h today after hearing on Saturday a plethora of arguments from the various parties – most of which questioned the jurisdiction of the court to hear the matter.

In fact, Attorney-at-Law Kashir Khan, who represented Change Guyana and The Citizenship Initiative – two of the new political parties that contested the 2020 polls – argued that the original jurisdiction of such a petition filed by the applicant is contained in the purview of the High Court while the Court of Appeal is a court of record.

“It, therefore, means that the nature consequence of the Court of Appeal and its functions are inherently subscribed by what the High Court can do. It cannot be that the High Court and the Court of Appeal have the same broad range and dept of jurisdiction. The High Court is able to pronounce on these matters. If there is an appeal, it then comes to the Court of Appeal as a court of record. I believe that is an important distinction…,” Attorney Khan submitted in court on Saturday.

According to the lawyer, these are matters concerning the validity of the elections and Article 163 of the Constitution gives a broad scope to deal with all of these matters. In fact, he contended that Article 177 (4), and even 177 (2) which is the one that speaks to interpretation, have to be naturally circumscribed by the broad powers given to the High Court by Article 163. This, he contended, further buttresses the position that the Appeal Court ought not to be considering the matters which the applicant has canvased in the court.

“These are matters essentially for the High Court,” he stated.

Attorney Khan further submit that even if the Appeal Court is persuaded by the arguments of the applicant and of the Attorney General, who is a named respondent and the only party in the matter that is supporting David’s application, and finds that it has jurisdiction to hear this matter then it will have to consider what is asked by the applicant.

To this end, Khan to dissected the reliefs set out in the Motion filed. Among them is an order from the court restraining the CEO from “complying with the direction of the Chairman of the Guyana Elections Commission… to submit to the Guyana Elections Commission an Elections Report under Article 177 (2) (b) of the Constitution of Guyana [and under Section 96 of the Representation of the People Act] without the Guyana Elections Commission determining the final credible count and or the credibility of the General and Regional Elections…”

David also wants an order restraining the CEO from submitting to GECOM, his Elections Report which “contains votes that are not valid and credible” within the meaning of Order No 60 of 2020, and under Section 96 of the Representation of the People Act.

The court is being asked too to make a declaration that GECOM has failed to “determine a final credible count and or the credibility of the result of the General and Regional Elections” in accordance with Order No 60 of 2020 and the amended order dated the 29th day of May 2020.

However, Khan told the court that this application is implying that the Commission has not yet determined the final credible count or the credibility of the General Elections.

“I would respectfully submit that is not so because the Commission, in the form of its Chairman, having written to the Chief Elections Officer asking him to produce a report consistent with Section 96 has in fact impliedly determined that the elections results are credible. It cannot be that you’re asking for an injunction but that injunction is predicated on the Commission determining something when in fact by writing the letter, they’ve already determined that,” he submitted.

According to the attorney-at-law, the implication of granting this order is saying to the Commission that it must go back and make a determination other than the one it has already made.

“…that then takes us into the territory of the deliberations of the Commission which… no court can enquire into…”

He added that the determination “of a credible count” and the “credibility of the elections”, was already determined.

“It is on the basis of that determination that a letter would have been sent to the Chief Elections Officer and it is not in the purview of this court to go back now and tell the Commission to go back and deliberate again and come up with some other results. No court can do that, your honour.”