Chief Justice Bernard dismisses Hamilton's motion

Stabroek News
April 1, 2001

Chief Justice Desiree Bernard yesterday dismissed the injunction applied for by Joe Hamilton, executive member of the PNC REFORM (PNC/R), to prevent the chairman and members of the Elections Commission from declaring President Bharrat Jagdeo winner of the March 19, elections, and the Chancellor of the Judiciary from swearing in President Jagdeo as President of Guyana.

However, she has ordered that the chief election officer (CEO) and the Guyana Elections Commission comply without delay with Section 84(1) of the Representation of the People Act Cap 1:03.

Chief Justice Bernard ruled that Elections Commission Chairman Maj Gen (rtd) Joe Singh's declaration of the President on March 23, was lawful and that it was made with the unanimous consent of all the members of the commission. Also, she said that the CEO had announced the results in the presence of all of the members of the Elections Commission.

She also ruled that there was nothing in the declaration that suggested that Maj Gen Singh had acted without the advice of the CEO, as required by Article 177(2) or that such advice had not been tendered to the commission at a duly summoned meeting. As such, she concluded that the presumption of regularity must obtain.

Section 84(1) provides for the returning officer in the presence of the party polling agents and other persons "to ascertain the total votes cast in favour of each list in accordance with the statements of poll... and thereupon publicly declare the votes recorded for each list of candidates."

The Elections Commission has since issued a press release stating that it has directed that the CEO take immediate steps "to secure compliance with the provisions of Section 84(1) of the Representation of the People Act Cap 1:03 as ordered by the honourable chief justice." The release said that the commission met at 1145 hrs yesterday to consider the judgement.

After reviewing the arguments from both sides, Chief Justice Bernard concluded that "the intention of the legislature at all times was to provide for the counting of votes... it is the clear duty of the returning officer of a particular district to ascertain the total votes cast in favour of each list in the district."

However, she observed that "though not mandatory, the provisions impose a duty on the returning officer. And although in my view non-performance of a statutory public duty may not render acts done in the performance of the duty null and void as was stated in Normandi (supra), it is a duty which is binding and should be carried out. This must have been the intention of the legislature, and it cannot be ignored."

She also endorsed her ruling in her 1998 decision re Norton that "certiorari lies against the chief election officer performing duties within the mandate of the Elections Commission."

She explained that the Elections Commission was a statutory body of persons of public character whose function was to determine supervisorily and administratively matters affecting the citizens of Guyana with a duty to act in a manner to ensure impartiality and fairness which in effect means to act judicially.

In her review of the submissions by counsel for Hamilton and the respondents, about the court being able to grant prerogative orders where alternative remedies existed, the Chief Justice said that it was "pellucidly clear that the validity of an election can only be challenged by the filing of an election petition. However, she observed that Hamilton's counsel had stressed ad nauseam that they were not seeking to challenge the results of the election but to have the Elections Commission and the CEO perform their statutory duties.

In this regard the Chief Justice said that the affidavits filed in support of the applicant's motion, particularly the last one filed on March 29, "have cast doubt on the efficiency of the work of the Elections Commission."

She noted that it "is hardly a secret that there have been significant irregularities, presumed or real, in the electoral process and that commendable efforts had been made to reduce the doubts which surround the process. However, serious doubts remain and the populace demands answers," and it was the duty of the Elections Commission and staff "to take such action as appears necessary to ensure impartiality, fairness and compliance with the provisions of the Constitution and any other acts of Parliament.

"In the present volatile situation which pervades our country, no effort must be spared to assure everyone that the process is fair and impartial. Lingering doubts that hang like a Sword of Damocles over the head of the commission must be removed. Confidence in the electoral process must be removed."

With regard to a submission from Hamilton's counsel that the March 23, declaration was not protected under Article 177(6) of the Constitution, the Chief Justice endorsed her findings in the Norton case that the declaration was protected.

The respondents were the Elections Commission, the Attorney General and President Jagdeo.

Hamilton was represented by Basil Williams in association with Roysdale Forde, Sean Allicock and Emily Dodson; the Elections Commission was represented by Ashton Chase SC, who also appeared in association with the Doodnauth Singh SC and Anil Nandlall for the Attorney General; and President Jagdeo was represented by Ralph Ramkarran SC in association with Khemraj Ramjattan and Rafik Khan.