February 2, 2000
It seems as if the evidence being led in the hearing of the election petition could be finished within the next few weeks. Counsel will then address the court in the usual way and the court will give its decision.
There is considerable public interest in the possible orders the court can make depending on its findings of fact. The relevant legislation is the National Assembly (Validity of Elections) Act. In l964 the electoral system of proportional representation (PR) was introduced in place of the constituency system. The scope of an election petition under the new system is quite different from that of the old. Up to l964, if Harry felt that his opponent Tom had not won the Georgetown North constituency fairly he could challenge that result on certain prescribed grounds. If he proved that there had been the relevant transgressions the court could set aside the result and a by-election would have to be held to fill the vacant seat in parliament. Under PR one is at least potentially challenging the entire election.
In l964 Governor Richard Luyt passed the House of Assembly (Validity of Election) Regulations to cater for the new system. Regulation 30 provided that where on an election petition it was shown that (a) corrupt or illegal practices or illegal payments, employments or hiring committed in any district have so extensively prevailed that they, either alone or in combination with any similar practices shown in an election petition or petitions to have been committed in other districts may be reasonably supposed to have affected the allocation of seats under regulation 69 of the Election Regulations; (b) the election in any district was not conducted in accordance with the principles laid down in the Elections Regulations and such procedural irregularities either alone or in combination with procedural irregularities shown in an election petition or petitions to have taken place in any other district or districts may reasonably be supposed to have affected the regulation of seats, "the Court shall declare the votes cast in such district to be void". A future poll could be held in that district.
In l968, in preparation for the rigged elections to be held that year, the elections regulations and all related laws underwent a thorough revision with two objects in view, to facilitate the rigging and to make it difficult for anyone to succeed in challenging the results. As part of this process, the above regulations were extensively revised and made into an Act, the National Assembly (Validity of Elections) Act.
Section 30 of that Act effectively replaced and transformed the former regulation 30. The vital part of that section reads as follows:
30. (l) Where it is determined by the Court, being satisfied for the purpose beyond reasonable doubt on an election petition, that any unlawful act or omission (not remedial under section 28 or 29) affected the result of an election which would otherwise have lawfully resulted-
(a) in different placing of the respective lists of candidates in the order of magnitude of the allocations of seats to such lists under section 97 of the Representation of the People Act, or in different placing of any of the lists in that order, from their placing or aforesaid according to the result so affected; or
(b) in more than half the members of the National Assembly being persons whose names appear on any list the seats allocated to which under section 97 of the Representation of the People Act are occupied by not more than half the members of the Assembly according to the result affected as aforesaid;
the Court may, in consequence of such determination, declare the election, or any part thereof if the Court is satisfied that the remainder is conveniently severable and was not affected by such unlawful act or omission, to have been ineffective and may accordingly order a fresh election to be held in whole or part for the purpose of rectifying the said result and give such incidental, ancillary or supplementary directions as the Court deems meet for the purpose of such rectification including (without prejudice to the generality of the foregoing) the re-allocation of seats in the National Assembly.
Under this section, the burden of proof facing a petitioner is high. In the first place the Court must be satisfied beyond reasonable doubt, normally a standard of proof applicable in criminal cases, not civil proceedings. Secondly the petitioner must show that there would have been a different placing of the respective lists ( (30) (l) (a)) or, it seems, (the language of 30 (l) (b) is extremely convoluted) that more than half the members of the National Assembly were affected. If the court is so satisfied it can declare the election, or any part thereof if the court is satisfied that the remainder is conveniently severable and was not affected by such unlawful act or omission, to have been ineffective and may order a fresh election to be held in whole or in part and give such incidental directions as may be deemed fit.
Section 3l (l) provides that every declaration made by the court under Section 30 shall take effect at such time as the court considers expedient "due regard being had to the interests of effective government".
Section 3l (3) also provides that the result of an election shall not be liable to rectification in consequence of the determination by the court of any question mentioned in section 3 (l), or whether an election has been lawfully conducted, except under section 28, 29 or 30.
One question that may arise given the limited nature of the remedies made available to a petitioner by the Act, is whether the court can go beyond those limits where it finds that, generally, or in any particular region the election has so departed from the requirements of the law that it cannot be considered "lawful", and in keeping with the provisions of Article l63 of the Constitution.
Article l63 (l) states "Subject to the provisions of this article, the High Court shall have exclusive jurisdiction to determine any question-
(a) regarding the qualification of any person to be elected as a member of the National Assembly. (b) whether - (i) either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission;
(ii) the seats in the Assembly have become vacant; or
(iii) a seat in the Assembly has become vacant; or
(iv) any member of the Assembly is required under the provisions of article l56(2) to cease to exercise any of his functions as a member thereof;
(c) regarding the filling of a vacant seat in the Assembly; or
(d) whether any person has been validly elected as Speaker of the Assembly from among persons who are not members thereof or, having been so elected, has vacated the office of Speaker.
Article l63 (4) gives Parliament authority to "make provision with respect to :
" (a) the circumstances and manner in which and the conditions upon which proceedings for the determination of any question under this article may be instituted in the High Court and an appeal may be brought to the Court of Appeal in respect thereof.
(b) the consequences of the determination of any question under this article and the powers of the High Court in relation to the determination of any such question, including (without prejudice to the generality of the foregoing power) provision empowering the High Court to order the holding of a fresh election throughout Guyana or a fresh ballot in any part thereof the re-allocation of seats in whole or in part; and
(c) the practice and procedure of the High Court in relation to the jurisdiction and powers conferred upon it by or under this article and of that Court and the Court of Appeal in relation to appeals to the Court of Appeal under this article".
The Constitution supersedes and overrides any other legislation.