Hearing continues tomorrow
Respondents ordered to file affidavits
March 25, 2001
Chief Justice Desiree Bernard yesterday adjourned to tomorrow, the
hearing into an injunction being sought by the PNC REFORM to prevent
the swearing in of Bharrat Jagdeo as elected President of Guyana.
She ordered that the Elections Commission, the Attorney General and President Jagdeo be named as respondents to the application for the prohibition order filed by lawyers on behalf of PNC/R candidate Joseph Hamilton.
She also ordered counsel for Hamilton to effect service of the motion and affidavit on the lawyers for the respondents, who have agreed to accept service on behalf of their clients. With respect to the Elections Commission she ordered that it provide an affidavit detailing the circumstances under which the instrument declaring President Jagdeo as President was made.
Senior Counsel Doodnauth Singh and Ralph Ramkarran, counsel respectively for the Attorney General and President Jagdeo had submitted on Friday that because the instrument had been issued by Chairman of the Elections Commission, Maj Gen (rtd) Joe Singh, the court had no jurisdiction to hear the application. They also submitted that the allegations in the affidavit could not be moved by a constitutional motion but should be the subject of an elections petition.
At yesterday's hearing, legal adviser to the Commission, Bryn Pollard, SC, informed the court that both the governing PPP/Civic and the parliamentary opposition parties were represented on the Elections Commission. He said too that they (the six commissioners) were present when the instrument was signed and that it was the intention to publish it in an extraordinary issue of the Official Gazette on March 23. However, to prevent a recurrence of the events of 1997, Pollard said, the commission held back when Justice Bernard informed that the application had been made to the court for a prohibition order to prevent President Jagdeo from being sworn in.
He said too that when Chief Election Officer (ag) Gocool Boodoo, announced the results of the elections on Friday all the commissioners were present and there was no dissent.
When the hearing resumed yesterday, Basil Williams, lead counsel for Hamilton, contended that by raising the preliminary objections, counsel for the Attorney General and President Jagdeo were seeking to gain an unfair advantage as his client would have to reveal his case and they would be able to tailor their affidavit in answer accordingly. He contended that neither of the two parties was properly before the court.
He also contended that the statement by Singh that the results were announced at 4:30 am was an attempt to introduce viva voce evidence and that only once in 100 years had that procedure been followed in cases such as the one before the court.
Williams also contended that the instrument issued by the commission under Article 177(2) was different to that required under article 117(6)(a) and (b) with the latter being required when there was a challenge to the person declared as elected to the presidency.
This argument led Justice Bernard to consider the fact that a swearing-in ceremony was only the outward formality of something already done and that the issue was really the declaration of President Bharrat Jagdeo as the winner of the presidential elections by the instrument signed by Maj Gen Singh.
Responding to the submission that Hamilton had used the wrong procedure to move the court, Williams contended that the motion was not an attempt to vitiate the elections but to have the returning officers carry out their duties as mandated by the Representation of the People Act.
At the conclusion of Williams's response, Justice Bernard, in the interest of the urgency she felt the case needed to be dealt with, ordered the persons named as respondents to file the necessary affidavits setting out all the matters that should be included in their answers. She said that she was abandoning the normal procedures with relation to the filing of affidavits to facilitate the speedy determination of the case.
Lead counsel for the Attorney General, Ashton Chase, SC, told the court that his client did not intend to file any affidavit, as it was his client's contention that the court had not jurisdiction to touch the election of the President.
He said that he would even be bold to say that the instrument signed by Maj Gen Singh was a genuine document on which a brake had been put because of the application before the court.
He also criticised Hamilton's affidavit pointing out that among other things it had omitted to state how many persons had been affected by the allegations made therein. Also, that if the returning officers had failed to discharge their statutory duty those details should also have been included.
Before adjourning the case to tomorrow, Justice Bernard noted that every four or five years the country goes through a period of self-flagellation which takes about a year to heal and when the wounds are healed, begins the process all over again.
She stressed that "we must find a way of healing the wounds that exist", adding that the emotions of the crowd gathered outside the court were high. Justice Bernard had had to adjourn the hearing earlier, while the crowd was moved from the immediate vicinity of the court as noise was invading the courtroom making it difficult to work.