Nandlall insists Caribbean Court can hear Guyana’s latest case on elections recount

Last Updated on Thursday, 25 June 2020, 13:14 by Denis Chabrol

Attorney-at-Law, Anil Nandlall (left) and Attorney General Basil Williams

A day after Attorney General Basil Williams filed papers to the Caribbean Court of Justice (CCJ) asking it to rule that it cannot legally hear Guyana’s latest election related case, People’s Progressive Party (PPP) Attorney-at-Law Anil Nandlall was Thursday adamant that the regional court has jurisdiction to hear the matter.

He explained that the 2004 CCJ Act provides for, among other things, an interpretation of Guyana’s constitution as well as a provision that saves decisions that were final in the domestic courts before that law had been passed.

“That is a transitory provision and that speaks only to decisions that were made by the Guyana Court of Appeal prior to 2004, prior to the Act coming into force,” he said. Nandlall added that the Guyana Court of Appeal’s decision was made in 2020 and “clearly” not before the Act came into force and so that provision does not apply.

The CCJ panel of judges is Thursday afternoon expected to hold a case management session with lawyers for all of the parties in the appeal filed by PPP General Secretary, Bharrat Jagdeo and presidential candidate, Irfaan Ali.

The PPP wants the CCJ to throw out a decision by the Guyana Court of Appeal earlier this week that the words “more votes are cast” in Article 177(2)(b) of the Constitution of Guyana be interpreted to mean “more valid votes are cast in relation to the election held on 2nd March 2020”.

Nandlall also cited a provision of the CCJ Act to say that the appeal qualifies as a “matter of its great general or public importance.”

Justice Brassington Reynolds, in his analysis, states that “accordingly, I find that GECOM (Guyana Elections Commission) does have responsibility to determine the final credible count of the results, it would be reasonable to presume that that final credible count would require both a quantitative and qualitative assessment of reports and the summary of observations submitted to the commission in compliance with Order 60 of 2020.”

The  observations refer to alleged voter impersonation of deceased and people overseas,  missing voters’ lists and statutory documents to allow for reconciliation of  votes cast .

Nandlall, a former Attorney General of Guyana, further contended that the CCJ would be obliged to hear the upcoming appeal because it would only apply to legal decisions. “It will not apply to intra vires and lawful decisions of the Guyana Court. It will not apply in a case where the matter is contrived and dress-made to fit into that narrow jurisdiction because such a matter will lead to a decision that is a nullity, a decision that is void ab initio (from the beginning) and any such decision would be liable to be set aside by the court,” he said.

On that basis, Nandlall said Jagdeo and Ally are arguing that the case by APNU+AFC supporter, Eslyn David, in the Guyana Court of Appeal has nothing to do with Article 177 of the Guyana Constitution but about the qualification of the election of a sitting President.

He further argued that the CCJ has jurisdiction because lawyers for the appellants would contend that the Guyana Court of Appeal did not act within its jurisdiction.

The CCJ has since issued an interim order barring GECOM from doing anything, including declaring results of the March 2, 2020 general and regional elections, until that court hears and determines the case.

But Attorney General  Basil Williams, in court papers filed on Wednesday, asked the CCJ to find that it does not have jurisdiction to hear the appeal by Bharrat Jagdeo and Irfaan Ali of the People’s Progressive Party. 

He argues that the CCJ  lacks jurisdiction to hear the appeal because Article 177 of the Guyana Constitution excludes all other courts, including the regional court, which is Guyana’s final appellate.  The Attorney General is also asking the CCJ not to grant any coercive orders being sought by Jagdeo and Ally because the Court has previously decided that it would not give coercive orders against GECOM or give directives.

The CCJ has already issued an interim order blocking GECOM from declaring election results until the hearing and determination of the Jagdeo-Ally appeal.

If Jagdeo and Ally win this case at the CCJ, Nandlall said it would pave the way for GECOM to receive the valid votes from the Caribbean Community (CARICOM)-scrutinised recount process in keeping with directives by the seven-member Commission. He said the Chief Elections Officer, Keith Lowenfield would “have no authority to depart from those directions.”

Based on the recount, of the 460,352 valid votes cast, the incumbent A Partnership for National Unity+Alliance For Change (APNU+AFC) has won 217,920 and the People’s Progressive Party 233,336. The three ‘joinder’ parties- A New and United Guyana (ANUG), Liberty and Justice Party (LJP) and The New Movement (TNM) got a total of 5,214‬ votes.

After last Monday’s decision by the Guyana Court of Appeal, the Chief Elections Officer subtracted more than 115,000 votes in his tabulation that gave A Partnership for National Unity+Alliance For Change (APNU+AFC) a one-seat majority in the 65-seat National Assembly, the PPP.

Overall, Lowenfield has removed 115,844  of the 460,352  valid votes cast based on what he described as “guidance from the Court of Appeal”  in its decision that more votes means more valid votes when one considers the gazetted recount order.

The PPP, with 166,343 votes, was given 31 seats APNU+AFC 32 seats with 171,825 votes and the three small-The New Movement, A New and United Guyana, and Liberty and Justice Party- a total of 3,348 votes.