Govt, laws illegal - McKay
By William Walker
January 19, 2001
Questions have now arisen as to what kind of consequential orders Justice Claudette Singh can make following her declaration on Monday voiding the 1997 elections. The possibility exists that all legislation passed in the last three years would be invalid.
Arguments will continue today with Senior Counsel Ralph Ramkarran and Llewellyn John and it appears unlikely that any ruling will be given before the weekend. Senior Counsel Rex McKay was adamant that the effect of Singh's ruling on Monday made the present government illegal and any laws passed following the flawed elections were also invalid. "From the moment you delivered your decision... the government ceased to exist. They are there only as a de facto government. Anything they do after your decision will be declared illegal." He argued that until the judge made a consequential order the government remained illegal since it assumed power under an invalid election.
But he questioned the court's jurisdiction over validating legislation coming out of an illegally elected National Assembly. "The court does not validate acts--it is the legislative branch... It would be necessary to have the validation of legislation not from a court if not all the circumstances were before the court... The proper forum is Parliament."
He suggested there was something misleading about Section 31 of the Validity of Elections Act in authorising the judge to make such orders. Section 31 gives the judge leeway to save "the validity of things" done before her ruling "due regard being had to the interests of effective government of Guyana..." But this only applies under the criteria of the judge's findings on non qualified candidates; the misallocation of seats in the National Assembly; and unlawful acts and omissions.
Senior Counsel Keith Massiah concurred that the effect of Justice Singh's ruling made all laws invalid ab initio (from the inception).
But Justice Singh pointed out: "My ruling is not retroactive and took effect on Monday." Massiah maintained that since the defect happened three years ago, "everything has to go... We never had a lawfully established Parliament. We believe parties in Parliament are the proper ones to deal with the legislation... This ruling has more teeth than we thought!" And he read from Article 163 Section 3(B) of the Constitution which states: "Parliament may make provision with respect to the consequences of the determination of any question under this article..."
On the separate issue of ordering fresh elections, Massiah said that the amended Section 3 of the Validity of Elections Act referred to all classifications for considering an election petition as set out in Article 163(i) of the Constitution. This includes the "unlawful conduct" criteria, which Justice Singh used for her ruling. Section 3 instructs: "Your Honour is fully empowered to make a remedial order and that nothing appears to restrict you... You could order a fresh election in two weeks if you wished."
Massiah went so far as to wonder if the government should be ordered to demit office.
Justice Singh asked, "Do I have this power?" Massiah suggested she might have but there should be concern as to the governance of the country.
Saphier Hussain, attorney-at-law and co-respondent, urged that the judge make a remedial order that was clear and indisputable. He agreed with Massiah that under the amended Section 3 of the Validity of Elections Act, the judge had full authority to make consequential orders.
McKay, having researched cases related to the doctrine of necessity raised by Ramkarran on Tuesday, said the case of Grenada could not apply here. The rule of necessity allows legislation passed by an illegal government to stand temporarily in the interests of a country's stability. McKay read: "the rule of necessity ought not to be mechanically applied if it is an affront to justice." McKay spent much of the morning going through the judge's ruling on the irregularities committed during the election. This was an attempt to show that the judge had considered these in her ruling that "the 1997 elections were not conducted in accordance with the Representation of the People Act..." and not only on the constitutional contravention of Articles 59 and 159.
Legal analysts have noted that this would strengthen the argument that the government should demit office and that all laws passed after December 1997 were invalid. The analysts say were the reason for the invalidity of the elections solely based on the voter ID card legislation all political parties would be culpable. Hussain submitted that the inclusion of the Representation of the People Act was simply because the said act required that the elections were held according to the dictates of the Constitution.
Nevertheless McKay read the most pertinent parts of Justice Singh's ruling, including the admissions by the Chief Election Officer that his actions had breached the laws governing elections. He marvelled at the court's "compassion--generosity is too mild a word" in not making the conclusion that the results would have been affected.
McKay said he was worried that Justice Singh's written ruling did not contain the words that the 1997 elections had been vitiated when it had been included in the oral ruling. "Its absence is worrying, Your Honour."
But Justice Singh, who admitted she had used the words on Monday, said the conclusion was self evident in the remarks of Chief Justice Bollers: "...for anything done under an invalid act must be unlawful, null and void."
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