Hamilton's lawyers to continue response today
More affidavits to be filed
March 27, 2001
Lawyers for Joe Hamilton will today continue their reply to the preliminary objections raised to the court hearing the application for an order staying the swearing in of President Bharrat Jagdeo.
They spent yesterday in the same exercise, which Senior Counsel Ashton Chase-now appearing for the Elections Commission as well as the Attorney General-said was immaterial to the issues before the court.
Those issues are whether the court has the jurisdiction to hear the case since Elections Commission Chairman, Maj Gen Joe Singh had declared President Bharrat Jagdeo the winner of the presidential election and that an election petition was the way Hamilton should have approached the court, rather than applying for prerogative orders.
Chief Justice Desiree Bernard, who is hearing the case, resisted Chase's urging to wind up the case, explaining that it was always her practice to ensure that whatever the decision, the litigant should leave the court believing that he had a fair hearing.
She was determined that the noise from the crowd gathered outside should not interfere with the proceedings and both the morning and afternoon adjournments were taken when this noise invaded the court room.
For most of the day, Roysdale Forde one of Hamilton's battery of young lawyers, marshalled a number of submissions to show that the court had jurisdiction to hear the case contending that the motion was to have the officers of the Elections Commission comply with the provisions of the relevant statutes and not to challenge the results.
He also contended because the 1980 Constitution brought into existence the executive presidency, the principles decided in the cases of Petrie v Attorney General (1968) and Seecomar Singh v Butler had limited application in the case before the court. He explained that principles were related to the election to the National Assembly.
He also contended that under the court's supervisory jurisdiction it has the power to ensure that the Elections Commission did not exceed the powers granted to it citing case law from a number of English cases.
Responding to a question from Justice Bernard who wanted to know what would be the practical effect of the orders being applied for, Forde submitted that they would nullify the results of the elections and allow the Chief Election Officer to let the system run as it was intended to do.
He also referred to Section 84 of the Representation of the People Act stating that its breach had resulted in the votes for the PNC and PPP being reported incorrectly to the commission.
Forde, by way of example, cited the votes for Division 412511D in which the PNC REFORM obtained 228 votes and the PPP/Civic 63 but in information generated by the Elections Commission the PNC's vote was recorded as 223. In Division 413521B the PNC's 97 votes were recorded as 1 and in Division 413431A(1) the PNC's 290 votes were recorded as 108.
This prompted the Chief Justice to suggest that the affidavit evidence was not appropriate for getting a full explanation for the various irregularities being alleged. She said that the information provided by Forde suggested that there was lack of compliance with Section 84 of the Representation of the People Act.
Forde submitted that an order, which allowed the election officials to comply with the law, would to a large extent satisfy the concerns raised about their non-compliance. But the Chief Justice continued to observe that the officials must be examined to determine whether the results were merely preliminary which were later corrected.
She observed too that since the computers were not providing the sort of quick and reliable results that would be expected of them, there should be a return to manual counting of the votes.
To another question from the Chief Justice as to whether there had been any concerns raised by the opposition commissioners and if so how was there a unanimous decision as reported by the commission, Forde said he was instructed that concerns had been raised. She said that it was important to ascertain what had happened given that the 1997 declaration was shrouded in controversy.
Continuing his submission as to the capacity of the court to grant an order to have Section 84 complied with, Forde submitted that to date no allocation of seats had been made by the commission nor had there been any appointments to the National Assembly, so there would be no great prejudice to anyone if the court ordered compliance with Section 84.
He informed the court that his instructions were that the Chief Election Officer had already taken steps with regard to Districts Three (West Demerara/Essequibo Islands), Six (East Berbice/Corentyne) and Ten (upper Demerara/Upper Berbice) to comply with the relevant section.
However, Chase informed that, as requested, he had contacted the Chief Election Officer and had been informed that no such steps had been initiated.
In response to an observation by Chase that the proceedings were immaterial to the issue before the court and that he (Chase) was paying no attention to them, lead counsel for Hamilton, Basil Williams, informed the court that while Senior Counsel chose to ignore his submissions he had just received information that four men had been shot at Weldaad, West Coast Berbice.
This report was also circulating outside the court and, according to a Stabroek News reporter in the crowd, appeared to have sparked the disturbances yesterday afternoon. (See other story on this page) Stabroek News rang the Weldaad Police Station to check this information and was told that it was just a rumour.
Forde cited case law to demonstrate that it was not, as Senior Counsel Doodnauth Singh and Ralph Ramkarran had submitted, that his client had to exhaust all the other available remedies before moving to the court to grant the orders being sought.
He also contended that the instrument signed by Maj Gen Singh only complied with article 177(2) of the Constitution and not 177(6), which required that a prior declaration should be made, before the instrument was issued.
Counsel for the Attorney General, the Elections Commission and President Jagdeo have submitted that both articles require only one instrument. Justice Bernard suggested that the instrument under article 177(6) as she understood Forde was one similar to that given a judge after taking the oath of office.
Forde also contended and submitted a definition from the New Elizabethan Reference Dictionary, which defined declaration as a public announcement. He said that while there was no explicit requirement in Article 177 that a public declaration should be made, it was implied that it should.
Before adjourning the case to today, Justice Bernard ordered the affidavit in answer to the commission's affidavit by this morning. Lead counsel for Hamilton, Basil Williams had argued strongly for filing it by 4:00 pm, when it was suggested that it should be filed by 1:30 pm yesterday.
Justice Bernard has also ordered Forde to provide affidavit(s) from the opposition commissioners about any concerns they might have raised about the results provided by Chief Election Officer to the commission.
Appearing with Williams and Forde for Hamilton are Sean Allicock and Emily Dodson; for President Jagdeo are Ramkarran, Khemraj Ramjattan, and Rafik Khan, and associated with Chase for the Attorney General are Singh, C.M.L. John, and Anil Nandlall.