Judge reserves decision
March 29, 2001
Chief Justice Desiree Bernard yesterday reserved her decision on the
application by Joe Hamilton, a PNC Reform candidate at the March 19,
elections for a prerogative order staying the swearing in of President
She told the court that she would advise the lawyers when she intended to hand down her decision, which should take a few days to complete. The Chief Justice complimented the team of lawyers for Hamilton, led by Basil Williams, and singled out Roysdale Forde for special commendation.
In the interim, she has granted counsel for Hamilton leave to lay over an affidavit, based on a letter to the chairman of the Elections Commission from the chief election officer (CEO), notifying him about an error in the tabulation of the votes for a sub division in District Four. (See story on page one.)
Hamilton's application alleged a number of procedural breaches by the returning officers and the CEO in the tabulation and declaration of the results of the elections. Because the alleged breaches would contravene Section 84 of the Representation of the People's Act, Hamilton wants the court to stay the swearing in of President Bharrat Jagdeo, until the returning officers and the CEO satisfy certain provisions. These provisions require that in the presence of the polling agents, the votes recorded on the statements of poll (SOPs) from the polling divisions under his control be tabulated and results publicly announced in his/her district.
Yesterday, Senior Counsel Ashton Chase, who is appearing on behalf of the Attorney General and the Elections Commission, made a number of submissions to demonstrate that the court had no jurisdiction to entertain the application and that the procedure for challenging an election because of the breaches complained of was by way of an election petition.
Responding to Hamilton's affidavit in support of his application and that of Maj Gen (rtd) Joe Singh, the chairman of the Elections Commission, Chase said that they disclosed a number of disputatious matters which could not be adequately explored by affidavit evidence. He said too that Maj Gen Singh's affidavit also reserved his position in the event that an election petition was filed.
He also contended that Hamilton's affidavit did not meet the standard required for the granting of a prerogative order, pointing out that a number of statements made from the bar table were not included in it and as such the court could not take account of those statements.
He also argued that the affidavit was replete with hearsay evidence and that the court was precluded from acting on hearsay evidence in such matters. Examples of hearsay were the statements by Hamilton that the ten returning officers did not publicly declare the results of their districts; that they did not tabulate from the SOPs the votes cast for each list of candidates in the presence of their representatives; and that the Elections Commission tabulated the results from the tally sheets rather than from the SOPs.
"The applicant does not provide any evidence for the draconian orders being sought," Chase said explaining that in the words of the old adage that there was not "enough evidence to hang a cat" much less to overturn a presidential election.
Turning to the question of procedure, Chase observed that whatever rights an individual might have, the law was a disciplined institution and whatever course it prescribed must be followed.
He submitted that Article 163(1)(b)(1) gave the High Court exclusive jurisdiction to hear any matter related to the validity of an election and that an election petition was the appropriate procedure for approaching the court.
With regard to the declaration signed by Maj Gen Singh that President Jagdeo was the winner of the presidential elections, Chase contended that the court had to accept it at its face value as evidence that all the conditions were complied with. He stressed that there had been no allegation of fraud and the advice as a result of which the instrument was signed could not be enquired into at this time.
Chase further argued that where there were other remedies provided for by legislation, the court could not issue prerogative orders.
Chase also contended that the Constitution did not provide for direct challenges to the election of the President, except on the limited grounds provided for at Article 177(4). This article provides for the Court of Appeal to hear challenges where "the question depends upon the qualification of any person for election or the interpretation of this constitution... ."
Chase argued that the framers of the constitution intended to insulate the election of the President from a specific challenge and had provided for the continuity of the Head of State and government of the country. This, he said, was achieved by the fact that once a person was elected as president the person holding the post before the election ceased to be president once the instrument under Article 177 was signed.
He contended that "there should never be a period in which there is no president and that the court cannot use a prerogative writ to effect this."
When he responded, Forde cited a case from Tanzania to support his submission that the intention of the clause could not have been to cover up a wrongdoing. Also, he said that by not publishing the declaration, the commission chairman did not fully comply with the provisions of the relevant article.
Referring to the amendment to Article 177(2), Chase contended that it was no reason for the Chief Justice to abandon the position she took in the Norton judgement as the alteration made did not impinge on the basic principles enunciated in that case.
With reference to the applicant's suggestion that the court should order compliance with Section 84 of the Representation of the People's Act, Chase posited that the court had no authority to grant such an order.
He said that among other things counsel for Hamilton had contended that they were not challenging or seeking to vitiate the elections, but that in effect their application was to do just that.
Chase added that while they wanted to have the SOPs tabulated, they could not show that as a result of such an exercise the results would be substantially affected. This, he said, was grounds for dismissing the application.
He contended too that there was no fundamental rights application before the court as then it would have to come with the provisions of articles 138-152 of the constitution. Also that if there were, there was specific procedure as set out in Act 13 of 1988.
Chase also contended that the Canadian cases cited by the applicant did not touch on any constitutional law which could influence the court, explaining that in any case Article 8 of the constitution, made the constitution the supreme law and any other law inconsistent with the constitution had no place there.
He contended too that the court would be creating a precedent if it were to use the prerogative writ for stultifying the election process.
Referring to affidavits filed in support of the claim by counsel for Hamilton that the CEO had summoned meetings with the returning officers of Districts 3, 6 and 10 so as to comply with the provisions of Section 84, Chase said that they did not endorse what was said. Instead, they showed that it was the returning officers who had summoned the meeting.
Disregarding the affidavit signed by Megan Davis who deposed incorrectly that she was a respondent in the case before the court, Chase said that the affidavit by Sandra Adams of Region 10 did not advance the case before the court as she did not depose anything in relation to Section 84.
Both Forde and Williams responded to the points which had been raised by the lawyers for the Elections Commission, the Attorney General and President Jagdeo. They reiterated that their application was intended to get the CEO to comply with the law as it went to the integrity and transparency of the process. They noted that there was sufficient time for him to do that.
Earlier in the day, the Chief Justice refused to grant leave to attorney-at-law Lloyd Joseph to make a statement after she had spoken with him in chambers as suggested by counsel for President Jagdeo, Ralph Ramkarran SC. She announced that the intended statement was immaterial to the proceedings before her.
Associated with Chase for the Attorney General were Doodnauth Singh SC , CML John and Anil Nandlall; for President Jagdeo Ramkarran was associated with Khemraj Ramjattan and Rafik Khan. With Williams and Forde for Hamilton were Sean Allicock and Emily Dodson.