Lawyers push different views on reason for nullification
January 22, 2001
Arguments are continuing among lawyers in the elections petition over the reasons behind Justice Claudette Singh's decision to declare the 1997 elections null and void.
At issue is the wording of Justice Singh's declaration which states: "...the 1997 elections were not conducted in accordance with the provisions of the Representation of the People Act Chapter 1.03 and Articles 59 and 159."
Senior Counsel Rex McKay on Thursday refused to accept the interpretation that the elections were vitiated purely on the technical consideration that the legislation introducing the compulsory use of Voter ID cards was unconstitutional. He said it was the accumulated effects of all the "massive irregularities"
by the Elections Commission that made Justice Singh come to her conclusion. Saphier Hussain had postulated that the inclusion of the Representation of the People Act was simply because it required that elections be run according to the Constitution and the use of the ID cards had contravened the said act. On Friday Senior Counsel Ralph Ramkarran on behalf of former president Janet Jagan, rose to refute McKay's argument and to seek the judge's clarification. He first recalled that McKay had concluded that "the results had been affected."
The burden of proof was on the petitioner to prove that the results had been affected, Ramkarran said, and read from page 10 of the ruling: "In Guyana there is no similar statutory provision empowering the court to declare an election invalid on the basis of an unlawful act or omission per se, that is in the absence of evidence that the unlawful act or omission has affected or may have affected the result of an election."
He then turned to page 73 where the judge wrote: "Although I view these flaws (irregularities and illegalities) as massive, the question which this court would have to address is whether these irregularities and illegalities in relation to the second limb of Article 163 1b might have affected the results".
The second limb of Article 163 sets a criteria of "unlawful acts and omissions" and not the question of unlawfully conducted elections which Justice Singh used for the ID card issue.
Ramkarran went on (page 74): "I am therefore unable to hold that illegal voting by persons who were not registered and were without voter ID cards would have per se affected the results of the elections."
Page 75 "Having considered the evidence in relation to the massive irregularities which have occurred I am unable to make a positive finding whether those unlawful acts or omissions per se might have affected the results... In the present case, while the final results might have been so affected as a mere possibility, for the court to find this a probability would necessarily involve the court in speculation and the court cannot speculate. As such I am unable to find that it is more likely than not that the proved unlawful acts or omissions did affect the final results of the elections."
Ramkarran then asked for a clarification of Justice Singh's second declaration because "in view of your findings I am not sure what this means." Justice Singh who has been steadfast in not adding any interpretation to her ruling despite the lawyers' own musings, merely said: "I did say that there were some unlawful acts...."
But McKay jumped up to protest Ramkarran's inquiry. "I was careful not to challenge the ruling. I just showed that there was an overriding compassion on the part of the court." He suggested that all this could be dealt with in the appeal and teased Ramkarran as to why he had not filed the motion already. Justice Singh is to rule tomorrow on what consequential order will be made as a result of her decision to void the elections.
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