Arguments continue on resulting order
January 19, 2001
ARGUMENTS are to continue today on the order to flow from Monday's decision in the December 1997 elections petition by Justice Claudette Singh.
She found that irregularities were not enough for her to displace the results of the elections but vitiated (made invalid) the polls after ruling that the use of special voter ID cards for the elections was unconstitutional.
The petition in which several contesting parties were named respondents was filed by Esther Perreira and arguments resumed yesterday on a consequential order.
Representing the petitioner Perreira from South Sophia, Georgetown are Mr Peter Britton, S.C. associated with Mr Raphael Trotman while Senior Counsel Rex Mc Kay and Mr Keith Massiah are appearing for respondent Mr Desmond Hoyte, leader of the main Opposition People's National Congress (PNC).
Senior Counsel, Mr Doodnauth Singh, Mr Ralph Ramkarran, S.C. and Mr Khemraj Ramjattan are representing respondents, Chief Elections Officer, Mr Stanley Singh, Chairman of the Elections Commission and Mrs Janet Jagan, representative of the PPP/Civic list of candidates.
Attorney-at-law, Mr Llewellyn John is representing the Good and Green Guyana (G&GG) and Mr Saphier Husain, the Guyana Independent Party.
Perreira had challenged the validity of the elections, claiming among other things that the elections were so flawed that the results could not be the will of the people.
The hearing lasted two-and-a-half years and 285 witnesses were called.
Arguments on the resulting order began Tuesday and first to address the court on the resumption yesterday was Mc Kay.
He said he had received correspondence from Ramkarran which outlined the section which he thought could be utilised in making the consequential order, and which he promised to deal with at the proper time.
He perused the judgment as delivered by the court in which the judge had gone through certain irregularities and constitutional defects before concluding that the elections were vitiated.
Mc Kay said he entirely agreed with the findings of the judge and the basis of the findings as outlined in her decision.
He referred to the judge's findings in relation to unsigned statements of poll and the verification process which was in progress when the Chairman of the Elections Commission left the room suddenly to make a declaration of the President.
After pointing out that there are those who are saying on the radio and over television that the elections were vitiated on a technicality alone and not on the results, Mc Kay referred to pages in the decision where the judge recorded that the Chief Elections Officer had admitted that there were instances where the votes were counted from forged statements of poll.
He was going through the findings in the decision and had stopped to tell the judge that she had shown great and overwhelming compassion to the other side, when Ramkarran noted that Hoyte had used the word 'generosity'.
Reacting to the interruption, Mc Kay said, "Generosity is too mild a word."
Continuing, he argued that if an order is declared to continue governance, that order should include all the parties in parliament and not only the members of the current government.
He contended there was legal authority for the court to make an order to validate legislation.
After referring to the massive irregularities as recorded in the judge's decision, Mc Kay argued that it was the responsibility of those concerned to lead evidence to show that those irregularities did not affect the results.
He claimed that not having done that, they could not now say that the irregularities did not affect the results, when the Chief Elections Officer had admitted in evidence that the results could have been affected.
Mc Kay contended that following the handing down of the decision the government ceased to exist because it was unlawfully in office.
He added, "They are there only as a de facto government and everything they have done from that date will be illegal."
Massiah asked that he be associated with the remarks by Mc Kay and cited several cases in support of his contention that the law of necessity cannot be applied in all cases, and was dependent on the circumstances.
The law of necessity, he said, could be applied to vitiate an election with a proviso to validate such acts that were wrongful.
He too contended that in accordance with the decision, the country was in crisis because the government was a de facto government and not lawful.
Consequent to the decision, he suggested, the judge could decide that the current government must go and that there be fresh elections within two weeks.
Alternatively, he said, the judge could very well declare that there should be new elections as scheduled on March 19.
Massiah also argued that if the 1997 elections were vitiated, the next legal government could come from former President Sam Hinds and Chancellor Cecil Kennard.
Husain argued that the court had jurisdiction to make a consequential order with a proviso to save the legislation.
He requested that the order to be made must be clear and unambiguous.
John is to put forward his arguments today.
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