Court can't enquire into action of Elections Commission Chairman

Stabroek News Editorial
January 13, 1998

Chief Justice Desiree Bernard yesterday upheld a procedural objection to the case filed by Aubrey Norton and discharged the orders nisi of certiorari and prohibition she had made on December 19, 1997 against the Chairman of the Elections Commission, the Chancellor of the Judiciary and President Janet Jagan. No order as to costs was made.

The judge dismissed several of the preliminary objections raised by the respondents related to getting leave before applying for a prerogative writ, service of the motion and the composition of the rubric. However, she agreed with the objection by lead counsel for Donald Ramotar, Derek Jagan SC, that the jurisdiction of the Court was ousted by the provisions of Article 177(6) of the Constitution which deals with election of the President of Guyana.

Article 177(6), Justice Bernard explained in her 21-page judgement which she delivered against the background noise of the traffic reaching the courtroom from the Avenue of the Republic to a packed but hushed courtroom, precluded any direct challenge to the election of the person named as president in the instrument executed under the hand of the Chairman of the Elections Commission.

Unlike previous hearing days, there was little noise from the crowd gathered outside the court during the decision and for some time after until the import of the Court's ruling had sunk in.

Underpinning her reasoning was what Justice Bernard described as her "firm view that the draftsmen and crafters of our existing constitution intended in 1980 that the persons elected to the high office of President of Guyana should be insulated and shielded from inquiry into his/her election, and that the validity of the election should not be the subject of direct judicial scrutiny."

Counsel for the applicant Norton, the General Secretary of the People's National Congress, led by Rex McKay SC, had argued that the question before the Court was whether or not Section 96 of the Representation of the People Act had been breached and that if the Court so found the arguments by Mr. Jagan were peripheral. However, the judge held after referring to the book "Caribbean Public Law" by Dr. Albert Fiadjoe which analysed the courts approaches to different types of ouster clauses including those in constitutions and after reviewing some of the decided cases that the "conclusive evidence" clause in Article l77 (6) of the constitution precluded the court from considering evidence that the Chairman of the Elections Commission had come to a wrong conclusion and had exceeded his powers.

The Chief Justice remarked that "on the basis of the facts alleged in the notice of the motion this Court was left with no alternative on 19th December, 1997 but to grant the orders nisi."

Only after the granting of the ex parte orders and the appearance of all the parties before the Courts could the matter have been fully ventilated and decided according to law, the Chief Justice observed.

It was not possible to ascertain up to press time if an appeal was being considered. Later in the day, Mr Norton told a crowd at a public meeting that an election petition would be filed challenging the results of the election.

The rule of law must be upheld at all times - C.J.

Chief Justice Desiree Bernard, in the course of her ruling yesterday discharging the orders nisi of certiorari and prohibition granted on December 19, said that the "service of the orders nisi on December 19, 1997 gave rise to some very disturbing events which have resulted in feelings of unease and disquiet."

Apparently referring to scenes captured on television of the State House ceremony the Chief Justice said that "Certain images have been permanently etched in our collective memories which maybe only the fullness of time will erase". She cited the words of the eminent English jurist, Lord Denning who in one of his judgements had said "Be ye ever so high, the law is above you."

The Chief Justice also said that "at all times respect for our courts and orders emanating therefrom must be maintained whether rightly or wrongly made". If this is not appreciated by laymen it is "inexcusable when totally disregarded and contemptuously treated by a member of the Senior Bar."

She observed that "the conferment of silk on senior members of the Bar carries with it responsibilities among which are upholding the rule of law and ensuring respect for our judiciary and judicial institutions".

Justice Bernard opined "that these responsibilities must be taken seriously regardless of the circumstances, and there is no excuse for crude and insulting behaviour, and such conduct must always be condemned in the strongest terms."

The Chief Justice said that the judiciary strove to dispense justice under severe pressures and less than favourable conditions. "We are here to dispense justice fairly and to hold the scales of justice evenly," she said, adding that "any political party or citizen must feel free to approach courts and have their cases decided according to law."

"Justice," she said, "must never be tied to political considerations and affiliations if we as a democratic nation believe in the separation of powers i.e. the legislative, the executive and the judiciary. The independence of the judiciary must be maintained at all times". On December 19, 1997, Chief Justice Bernard had issued orders nisi of certiorari and prohibition against the Chairman of the Elections Commission, Doodnauth Singh SC, the Chancellor of the Judiciary, Cecil Kennard, and Mrs Janet Jagan on on a motion filed by Aubrey Norton, general secretary of the People's National Congress (PNC).

Mrs Jagan was earlier that day secretly sworn in as President by the Chancellor after she was declared the winner of the presidential election by Chairman Singh at the Elections Commission office. Later the same day at a State House ceremony Chancellor Kennard handed over the Instrument of office. At that ceremony marshals from the High Court attempted to serve the orders on Singh, Kennard and President Jagan.

They were manhandled by members of the presidential guard and a well-known People's Progressive Party (PPP)/Civic activist. The President later threw the court order over her shoulder. Mr. Doodnauth Singh S.C. was sitting next to her at the time.

Among the invitees at the ceremony were a number of prominent attorneys including senior counsel, who were supporters and candidates at the December 15, elections.

Approached for a comment by Stabroek News on the Chief Justice's remarks, Mr. Doodnauth Singh said he had no comment. Ralph Ramkarran SC who appeared on behalf of Donald Ramotar, General Secretary of the People's Progressive Party (PPP)/Civic, in an invited comment, told Stabroek News that he was unaware what incident(s) the Chief Justice was referring to. He said that he would have to review the tapes of the ceremony at State House to inform himself as to what had occurred.

Ramkarran noted that he had conferred with Derek Jagan S.C. at the inner bar during the Chief Justice's ruling and Jagan too had expressed ignorance of the incident to which the Chief Justice had referred.

However, he added that generally he concurred with the Chief Justice's sentiments regarding the responsibilities and obligations of the senior members of the bar.