Judge again puts off order from elections petition
- lawyers to seek consensus on decision
January 24, 2001
JUSTICE Claudette Singh yesterday again postponed giving an order flowing from her vitiating (making invalid) the December 1997 elections on the ground that the use of a special voter ID card was against the Constitution.
She last week put off giving the order to yesterday and has now put that back to Friday.
The challenge against the elections -- held by international and regional observers to have been free and fair -- was by Opposition People's National Congress (PNC) supporter Esther Perreira and lawyers on both sides are due to meet today to see if they can agree on the order the judge should give.
Lawyers representing the PNC are backing the opposition party's arguments that the government should demit office but those on the other side contend that there was no need for this since the judge gave her ruling on a technical violation and a remedial order would resolve the differences.
Legal sources said lawyers coming together to work out an agreement was not unusual as attorneys on both sides in cases in the courts frequently meet to discuss a settlement.
Mr Ralph Ramkarran, S.C., one of the lawyers for the Elections Commission and the Chief Elections Officer on Friday forwarded a draft remedial order to the judge for consideration.
He argued the doctrine of necessity which provides for the validation of invalidated acts and things done by the National Assembly which resulted from the now vitiated 1997 elections.
Ramkarran had also asked that all acts and things done by the government and its agencies be declared valid, lawful and binding until the new President is sworn in after the scheduled March 19, 2001 elections.
He also served copies of the draft document on his colleagues on the other side and the judge was due to deliver her ruling yesterday in relation to the consequential order which was expected to give legality to all the acts of the National Assembly, and to legalise the National Assembly until the holding of the next elections.
But on the resumption yesterday, Senior Counsel Rex McKay for respondent, PNC leader, Mr Desmond Hoyte challenged Ramkarran's draft order.
He contended that if accepted by the court, it will invalidate the judge's decision and make the trial a mockery.
On the other hand, Ramkarran insisted that his suggestions under the heading of the doctrine of necessity system were sound and cited a number of cases in support of his contention that the government, if found to be de facto, could be validated until a new government and President are elected.
Supporting Ramkarran was Mr Khemraj Ramjattan who is also representing the Elections Commission and the Chief Elections Officer, Mr Stanley Singh in the petition.
Perreira challenged the validity of the elections on the grounds, among other things, that the polls were so flawed that the results could not be said to have been the will of the people.
The judge found irregularities, discrepancies and illegalities, but said that she was unable to say whether those defects had affected the results of the elections.
However, she knocked down the elections on a constitutional point which originated when all the parties in parliament had amended the law without a two-thirds majority, to provide for voter identification cards.
Another Senior Counsel, Mr Miles Fitzpatrick, representing respondent Dr Rupert Roopnaraine of the Alliance For Guyana, said that on the basis of the adoption of the doctrine of necessity, the government should remain in office until the scheduled elections and the acts of the government should be validated.
Fitzpatrick also referred to the fact the courts had closed their eyes to electoral manipulation in the past and the court now should bear that history in mind in coming to a conclusion.
Mr Saphier Husain of the Guyana Independent Party yesterday first suggested a need for a consensus consequential remedial order from among the parties involved in the petition.
Husain traced the history from a 1945 Order in Council in British Guiana, the 1961 legislation and the 1966 Constitution and Article 71 and 163 of the current constitution.
He argued that under those articles, there were provisions for rules to be made and rules were made under Article 71 of the 1966 Constitution.
He said that a section provides that where there is no rule, parties have to go back to the procedure of the House of Commons,
The House of Commons, he said, used to resolve elections petitions by way of a consensus, particularly if there is a wholesale void declaration.
In those circumstances the House of Commons would have invited the parties to come up with a solution in relation to a remedial order from the date of the order to the time when the new government takes office.
Consequently, Husain suggested said that the judge in the current case has jurisdiction to validate the acts and things done from 1997 to date on a temporary basis without limitation.
McKay who is contending that the validation must be with limitation, first addressed the court on the rule of law, saying this meant that the law is supreme over officials of the government as well as private individuals.
Secondly, he said, law and order are indispensable elements of civilised life.
"The rule of law in this sense implies simply the existence of public order."
McKay argued that the court having vitiated the elections, the consequential order which it ought to make is to declare the elections invalid and order costs.
The court, he argued, must ensure that the order it makes is in fact remedial in nature consistent with Section 3 (1) of the National Assembly (Validity of Elections) Act Chapter 1:04 as amended by Order 50 of 1980.
He said the main purpose of the order must be directed towards undoing the consequences of an illegal election -- an improperly constituted Parliament; an improperly elected President and an improperly constituted executive.
He called for the dissolution of the parliament and the demitting of office of the President and ministers.
To be truly remedial, he said the court must direct that there should be fresh elections not later than March 31, 2001.
He argued that until the elections, the court must devise some transitional arrangement to avoid a constitutional vacuum and proposed establishing a transitional National Council of leaders comprising of the parliamentary parties and members of civic society.
McKay said such a council should be vested with legislative and executive powers necessary only for the government of the country until the establishment of a new legitimate government from the fresh elections.
Ramkarran, however, contended that all acts and things done by the National Assembly, the government and all state agencies, bodies and institutions from December 15, 1997, are valid, lawful and binding.
He also said that the National Assembly, the government and all state agencies, bodies and institutions shall remain in existence and shall continue functioning for all purposes necessary to the governance of Guyana until a new President is sworn in after elections to be held on or before March 31, 2001.
He also said that all acts and things done by the government and its agencies are valid, lawful and binding until a new President is sworn in.
But McKay argued that the court cannot grant permanent validation as requested by Ramkarran.
He suggested that the court may grant temporary validity to laws passed between December 15, 1997 to the date of judgment in order to uphold the rule of law to preserve the rights, obligations and other effects as if they had arisen under valid enactments for the period until the new legitimate legislature permanently validates such laws.
McKay claimed that Ramkarran's request that all acts and things done by the de facto transition team until the new President is sworn in are valid, lawful and binding, is legally impermissible.
After Ramkarran observed that the judge was inclined to adopt a suggestion that all the parties should meet and discuss the recommendations from each side with the hope of arriving at a consensus remedial order for submission to the judge, he decided that he too would welcome the opportunity to strive for consensus, and as such would reserve his right to reply later.
In accordance with the suggestions and directions from the court the lawyers involved are to meet in the court room at 13:30 hrs (1.30 p.m.) today to discuss the points advanced.
They are then expected to bring their respective clients up to date with the discussions and are due to meet a second time in the court room tomorrow where they would ratify their discussions with the hope of presenting a consensus report to the judge on Friday morning.
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