Court of Appeal encroached on jurisdiction of High Court – Mendes submits

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CCJ President Justice Adrian Saunders

The hearing into the Caribbean Court of Justice (CCJ) jurisdiction to decide on the challenge to the Court of Appeal elections recount ruling began today (Wednesday) with Senior Counsel Douglas Mendes pointing out exactly why the Eslyn David’s case was flawed and why the Court Appeal had no jurisdiction to rule the way it did in the first place.

During his presentation earlier today, Mendes, delved into David’s submissions and highlighted that it was deficient in any references to the validity of an election.

According to Mendes, the only correlation David drew to Article 177 of the Constitution of Guyana was its mention of the word “votes.” He surmised that if the Court of Appeal exceeded its jurisdiction to rule in the case, then the CCJ not only had jurisdiction to hear the challenge but also to overturn the previous decision.

Mendes, who represents the applicants – PPP/C’s Presidential Candidate Irfaan Ali and General Secretary Bharrat Jagdeo, further noted that in order for David to invoke the Court of Appeal’s jurisdiction, it would have had to be a question as to the qualification/validity  of the President. Moreover, Mendes noted that a President must be elected before the court’s jurisdiction is invoked.

The Trinidadian lawyer pointed out that the only President at the time of the case was President David Granger, who’s election was since 2015. Moreover, the general precedent is that validity of an election of a president is determined after said president is elected.

“You have to determine an election as quickly as possible and the general principle is you determine it as quickly as possible. The principle is you determine validity after an election is (completed) so the country can settle down and you have a government in place,” Mendes said, citing case law to bolster his arguments.

Mr Mendes also argued strongly that it is the High Court that has “exclusive jurisdiction” to address matters in relation to the validity of an election, however, this has to be done via an elections petition after the results of that election have been declared and a government is sworn in.

He argued that both the Court of Appeal and the High Court cannot have jurisdiction over “the same thing”.

In contrast, APNU/AFC legal representatives were unable to cite any precedent in the Commonwealth Caribbean where there was a court ruling on the validity of an election before a government official was elected.

Attorney John Jeremie, who is the legal representative of David, argued that GECOM by its own authority amended the law and it is thus that the Court of Appeal rightfully asserted jurisdiction based on Order 60 of 2020.

Article 177 (2) (b) of the constitution of Guyana states: “…where there are two or more Presidential Candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential Candidate shall be deemed to be elected President and shall be so declared by the Chairman of the Elections Commission…”