Procedural arguments continue in elections case
January 1, 1998
Chief Justice Desiree Bernard was yesterday bombarded with legal authorities by both sides as the hearing of the election case continued. Counsel for the applicant and respondents on the hearing of the application by Aubrey Norton for orders of certiorari and prohibition against the chairman of the Elections Commission, the Chancellor of the Judiciary and President Janet Jagan submitted a large number of cases in support of their arguments on a large number of preliminary and procedural issues.
The Chief Justice had issued orders nisi on Friday, December 19, preventing the commission's chairman, Doodnauth Singh, SC, from declaring Mrs Janet Jagan as the winner of the December 15, elections, another barring the Chancellor, Cecil Kennard from swearing in Mrs Jagan as president; and another prohibiting Mrs Jagan from entering into and carrying out the functions and duties of President of Guyana.
The packed courtroom paid rapt attention to the arguments by Senior Counsel Stanley Hardyal, who is leading the defence team for the Singh, and Rex Mc Kay, Miles Fitzpatrick, and Keith Massiah, who responded to Hardyal's submission, relatively undisturbed by the muted noise from the crowd gathered outside the court.
Hardyal submitted that the gist of the complaint by Norton was that the chairman of the Elections Commission announced Mrs Jagan as the winner of the presidential elections before the verification process had been completed.
But he argued that there was no support in the Constitution for the commission to delegate or share its supervisory power with any outside body, explaining that since the commission had not done so no estoppel could arise.
Norton, in his affidavit in reply dated December 29, at paragraph nine, alleged that Singh had been estopped from declaring Mrs Jagan because he had not followed the procedure set out in Section 96 of the Representation of the People Act Chapter 1:03 as amended by Act No.30 of 1990.
Hardyal contended, with reference to the affidavits sworn to by Malcolm Parris, Jocelyn Dow and Barton Scotland, that the thrust of their complaint was that Singh's declaration was arbitrarily made and had been based on results not yet verified.
Hardyal contended, too, that Singh was not obliged to consult the members of the commission since in making the declaration he was the "mouthpiece of the Constitution" and not that of the commission.
Hardyal said that Sections 96 to 99 of the Representation of the People Act did not apply to the election of the President. Moreover, he argued that in the case of a challenge to the elections for the National Assembly, the High Court had exclusive and original jurisdiction, but that in relation to the president, nowhere was it stated in the Constitution that the High Court was vested with such jurisdiction. Further, he contended that no article provided for appellate jurisdiction with regard to the presidency and if any existed it could only be found in Article 177.
Dealing specifically with the declaration of Mrs Jagan as president, Hardyal argued that it was decided by a mathematical calculation since the relevant article said that the president was the representative of the list for which the most votes had been cast.
Hardyal argued too that under Article 172, the Elections Commission chairman's action was not subject to judicial review, nor could Section 96 of the Representation of the People Act override Article 177 of the Constitution.
Mc Kay, responding to Hardyal, argued that the gist of the matter was that the court was being asked if Singh in making his declaration of Mrs Jagan as winner of the December 15, presidential election infringed the provisions of Section 96, with all other matters being peripheral to that point. He explained that if as Article 177(1) provides, the President was elected from a list of candidates, the question that arose was how did one determine who got the most votes.
He contended that nowhere in the Constitution was it stated how the votes for the various list were to be ascertained and that this could only be found in Section 96 of the Representation of the People Act.
Mc Kay, arguing that there was no question of a conflict between Section 96 and the Constitution, said a declaration could only be made on the basis of information about the count supplied by the returning officers.
He contended that nowhere in Singh's affidavit dated December 24, did he mention the number of votes cast.
Moreover, Mc Kay argued that Singh had acted in bad faith when he left the commissioners and party representatives engaged in the verification process and behind their back made the declaration of Mrs Jagan as winner of the presidential elections.
And in response to the submission by Hardyal that there was no right of certiorari, Mc Kay cited a 1957 decision by Lord Denning to support his contention that this was only the case where there was legislation clearly worded which removed the right of a person to approach the court under a known procedure for such a writ.
Mc Kay stressed that prerogative writs were essential to ensure that tribunals did not exceed their powers, pointing out that if Singh acted unfairly his decision was bound to affect the public.
Supporting Mc Kay, Fitzpatrick said that Norton's application was relying on the simple principle that though the Constitution appointed officials it was the Common Law that ensured that they behaved in a civilized manner.
He argued that in response to contentions raised about Article 177(2), the procedure was clarified by the Representation of the People Act which provides that the declaration of the results could only be made after the commission as a whole decided what the results were.
Fitzpatrick contended that Singh could not rely on Sections 96 to 99 as he relied on his "guesstimate" which turned out to be wrong as confirmed by the final results, which were declared on Tuesday.
Singh, in acting the way he had done, according to Fitzpatrick, had ignored the opportunity of taking the advice of the other members of the commission.
Consequently Fizpatrick argued that in acting in the way he done, everything that followed Singh's action was void until rectified lawfully.
In relation to Article 177(4) of the Constitution, Fitzpatrick contended that the court had to make a distinction between the issues in contention in the case of Petrie and Singh v Butler as had been decided by Bollers CJ, arguing that the issue before the court was not challenging the elections as those cases had done.
Massiah, who was on his feet when the adjournment was taken at 4 pm contended that Singh could only seek the protection of the Constitution in so far as he had acted in accordance with the law.
He will continue his submissions when the hearing resumes tomorrow at 9.15 am.
Among the battery of lawyers appearing for both sides are Senior Counsel Derek Jagan and Ralph Ramkarran for General Secretary of the People's Progressive Party (PPP)/Civic, Donald Ramotar; Senior Counsel Bernard de Santos in association with Khemraj Ramjattan for Mrs Janet Jagan; Deputy Solicitor General, Fitz Peters, for the Chancellor of the Judiciary, Cecil Kennard; and Senior Counsel Stanley Hardyal associated with Jai Naraine Singh Jr, Vic Puran, Rajendra Poonai and Vashist Maharaj of Trinidad and Tobago for chairman of the Elections Commission, Doodnauth Singh SC.
Representing Aubrey Norton are Senior Counsel Rex McKay, Miles Fitzpatrick, Keith Massiah, Peter Britton in association with Sase Naraine, Roysdale Forde and Raphael Trotman. >