December 31, 1997
I notice that Mr Bernard de Santos who is appearing for Mrs Jagan in the election case filed by the PNC told your paper that his client would be relying on article 177(6) of the constitution, - (the report wrongly said article 176(6)) "which among others provided that once the instrument was signed by the elections commission no court has the power to enquire into the validity of her election."
Once again I feel compelled to show how slipshod drafting of the present constitution can cause grave complications. For the relevant paragraph in article 177(6) of the present constitution is a word for word repeat of the relevant paragraph in article 30(15) of the previous constitution which referred to the election of the then figurehead president (Mr Arthur Chung) by the 53 elected members of the National Assembly.
This identical paragraph in both constitutions reads, "... ... shall be conclusive evidence that the person so named was so elected and no question as to the validity of the election as the president of the person so named shall be enquired into in any court." But, as I shall endeavour to show, these identical paragraphs operate in entirely different contexts and should therefore be treated accordingly.
Under the previous constitution it was almost impossible that the person declared elected as president could be wrongly so declared because the presidential electorate was a handful of persons - a mere 53 elected MPs - who will have known how they had voted and who were hardly likely to meekly accept the returning officer's figures in the unlikely event that he had managed to fiddle them. In any case, a recount or even a fresh presidential election by the National Assembly would have been both quick, definitive and inexpensive.
On the other hand this is not now the case under the present constitution because the executive president of today is elected by the people in the same nationwide poll as elects the 53 national MPs, and article 163 which provides mechanisms for the determination of questions as to membership and elections of those elections states quite clearly that the high court shall have exclusive jurisdiction (153.1) with appeals lying to the Court of Appeal (163.3). In any case, article 177(6) which Mr de Santos refers to says that the person declared elected as president must be elected at the elections of the 53 national MP's. The constitution also says that the results of those elections may be disputed in the high court vide article 163(1)(b)(i).
You also quote Mr de Santos as saying that he will be using article 163, according to which he claims, "the Court of Appeal was the body which was entitled to hear the appeal, and not the High Court." This is not so as I showed above.
Finally, Mr Editor, of great material import is that the election of a president under the previous constitution (from which the relevant paragraph was so carelessly copied) was the election of a figurehead president, whereas today we are electing an executive president as well as the government, an entirely different kettle of fish.