‘Second declaration never invalidated’

In his submissions before a panel of judges in the Court of Appeal on Saturday in the case, Misenga Jones v the Guyana Elections Commission and others, the PPP/C’s lead Attorney, Senior Counsel Douglas Mendes argued that it is “an undisputed fact” that Mingo’s Declaration was “fraudulent”.

According to the Trinidadian Senior Counsel, there was “a full trial” into the March 13 Declaration made by the Region Four Returning Officer, and undisputed “evidence” showed that electoral fraud had been committed. “As a matter of fact, there is no dispute of fact before the Court concerning Mingo’s declaration. None!” the Attorney-General submitted.
He told the Appellate Court that Mendes’ contentions are furthest from the truth surrounding the declaration made by the Region Four Returning Officer.

In providing the facts, the Attorney- General turned the Appellate Court’s attention to the case, Bharrat Jagdeo and Reaz Holladar v the Returning Officer Clairmont Mingo and others, in which an attempt was made by the PPP/C to have the High Court set aside the March 13 declaration on the grounds that it was “fraudulent.”

FACTS OF THE MATTER
That attempt, the Attorney-General said, failed when High Court Judge Franklin Holder ruled that the Court had no jurisdiction to hear the case brought by the Leader of the PPP/C, and that any challenge ought to come by way of an Elections Petition in accordance with Article 163 of the Constitution and the National Assembly (Validity of Elections) Act.
In his declaration on March 13, Mingo announced that the A Partnership for National Unity + Alliance for Change (APNU+AFC) secured 136, 057 votes in District 4 (Demerara-Mahaica) in the General Elections, while the PPP/C secured 77, 231 votes. Jagdeo and Holladar, in their application, contended that based on Statements of Poll (SOPs) in their possession, the declaration made by the Region 4 Returning Officer was flawed.
Justice Holder, in handing down his decision, said the core issues raised in the application touch on matters provided for in Article 163 (1) of the Constitution, and as such ought to be dealt with by way of an Elections Petition, pursuant to Section 3 of the National Assembly (Validity of Elections) Act.
According to Article 163 (1) (b) (i), the High Court has exclusive jurisdiction to determine any question on whether, “either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission.”

The Attorney-General told the Appellate Court that it is instructive to note that Justice Holder’s decision in the case brought by Jagdeo and Holladar was never challenged. “It was never appealed,” he emphasised.
Mendes, in declaring Mingo’s Declaration fraudulent, argued that if the Appellate Court finds that it has jurisdiction to set aside the National Recount executed under Order Number 60, it should also assume jurisdiction to invalidate the March 13 Declaration. However, he made the proposition, notwithstanding the fact that he had conceded that any challenge to the validity of Mingo’s Declaration must be made via an Elections Petition under Article 163 (1) (b).

The Attorney-General told the Appellate Judges that Mendes ought to have informed them that he, on behalf of the PPP/C, had challenged the March 13 Declaration and was unsuccessful.

The Attorney-General submitted that the High Court established that it had no jurisdiction to set aside the March 13 Declaration, and GECOM, like the High Court, cannot set aside the 10 Declarations, as only an Elections Petition Court can do that. “Those 10 Declarations have not been invalidated, and the CCJ [the Caribbean Court of Justice] said that they cannot be invalidated, except by an Elections Petition Court,” Williams argued.

Aside from the case filed before Justice Holder in late March, the PPP/C had filed a contempt case, Reeaz Holladar v. Returning Officer for Region 4 Clairmont Mingo and others, on March 12, on the grounds that Mingo had not complied with the March 11 orders of Chief Justice (ag), Roxane George-Wiltshire.

The Chief Justice had ruled that the first declaration of votes made by the Region 4 Returning Officer on March 5 was unlawful, on the grounds that there was substantial non-compliance with Section 84 (1) of the Representation of the People Act when the Statements of Poll (SOPs) for District 4 were tabulated. She then ordered that the verification process, which was interrupted, be resumed or restarted, and that the SOPs be tabulated and projected in the presence of persons entitled to be there under the law. On March 13, Mingo made his second declaration in accordance with the Representation of the People Act and the Orders of the Court, according to the Chief Elections Officer, Keith Lowenfield.

NOTICE OF WITHDRAWAL
In June, three months after the contempt case was filed, PPP/C Attorney-at-Law Anil Nandlall filed a notice of withdrawal due to the lack of sufficient evidence. The last-minute decision, which came one day before the High Court was scheduled to hand down its ruling, did not sit well with the Chief Justice, who chided Nandlall for wasting the court’s time when he was fully aware that the application, as filed, did not meet the threshold for a contempt of court proceeding.

“I am very sorry, Mr. Nandlall, this is most unacceptable,” the Chief Justice told the Attorney during the hearing of the High Court case. Though not handing down her ruling in the matter, Justice George-Wiltshire said, “The evidence is very, very deficient,” and that in effect, Nandlall would have wasted the Court’s time.

Meanwhile, in rejecting Mendes’ arguments, the Attorney-General told the Appellate Court that the challenge brought by him has to do with the failure of the Chairman of the Elections Commission, Justice (Ret’d) Claudette Singh to declare the results of the elections in accordance with the Constitution and Representation of the People Act. He made it clear that his cross-appeal has nothing to do with the validity of the elections, but rather the procedure to be followed by Justice Singh as Chairman of the Elections Commission.

“This is not a case challenging the declarations; those declarations are extant… They cannot be rescinded or invalidated, except by an elections Court, as the Caribbean Court of Justice (CCJ) [has] said,” the Attorney-General told the Appellate Court.
According to him, the Chairman of the Elections Commission must, in accordance with the Chief Elections Officer’s Report, declare the Head of the APNU+AFC List President-elect. He said that the GECOM Chair having thus far failed to execute her constitutional mandate, it is now left to the Court, in its supervisory capacity, to order her to execute her constitutional functions.

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