Written submissions lodged with Chief Justice in elections case
January 9, 1998
Lawyers for Aubrey Norton, the General Secretary of the People's National Congress (PNC), have lodged written submissions with Chief Justice Desiree Bernard in the elections case. These submissions summarise the arguments raised in court by senior counsel for Norton in response to the procedural objections raised by senior counsel for Chancellor of the Judiciary Cecil Kennard, Chairman of the Elections Commissions Doodnauth Singh and Mrs Janet Jagan, to the hearing of the motion.
The respondents' lawyers were expected to lodge their written submissions yesterday. Mr Derek Jagan S.C. had argued that the motion was not properly served in that the return date was less than the two clear days required by the rules of the court. Norton's counsel submitted that the unconditional appearance of the respondents on Monday, 23rd December l997 had cured this defect. "An appearance gratis cures any defect in service".
Norton's counsel relied on the decision of Justice Crane in Re Arthur and Hermanstyne to support their argements that there was no need to refer to the relevant section of the Representation of the People Act in the rubric of the motion.
Dealing with Mr. De Santos's submission that the declaration by Mr. Singh of Mrs Jagan as president was not a "decision" and was therefore not amenable to certiorari they referred to statements in the text book on Administrative Law by Professor Wade to the effect that many cases of judicial review "turned on the legality of acts as opposed to decisions".
Counsel submitted that for someone to enter upon the duties of president after a general election in Guyana one of the requirements was that the list of candidates in which that person was designated as presidential candidate must have obtained more votes than any other list.
Section 96 of the Act requires the Chief Election Officer to calculate the total amount of valid votes cast for each list, relying (inter alia) on the information furnished by returning officers under the same Act; and after calculating those votes, to "ascertain" the result of the election in accordance with sections 97 and 98 (which deal with allocation of seats in and the naming of members of the National Assembly).
This section, they argued, does not permit a guesstimate to be acted upon nor a projection of a final total. It requires that the total votes of each list be calculated by the Chief Election Officer. Accordingly, Mr Singh could not have made a lawful declaration at that time without the vote count complete.
Dealing with the clause ousting the jurisdiction of the court in the Constitution counsel submitted that where there are acts of an official that are ultra vires provisions seeking to deny access to the court usually have no effect.
They also submitted that the proper forum is not the Court of Appeal as had been argued as Article l77 (4) of the Constitution which Mr. de Santos had relied on is limited to questions of qualification of members of the National Assembly (the president is not a member) and interpretation of the Constitution.
Finally, in response to the argument that the proper form of action is in an election petition filed after the election counsel submitted that that line of cases is not relevant as what is being decided here has nothing to do with the composition of the National Assembly and the exclusive jurisdiction of parliament in that regard but with the declaration of a President who is not a member of the Assembly.