PORT OF SPAIN, Trinidad – The Trinidad-based Caribbean Court of Justice (CCJ) Wednesday allowed the appeal against the decision of the Court of Appeal of Guyana regarding the election petitions filed following the controversial March 2 regional and general elections in the country.
The CCJ, Guyana’s highest Court, said it agreed with the majority of the Court of Appeal that it had jurisdiction to entertain an appeal from a decision of the Chief Justice, sitting in the High Court, dismissing an election petition for improper and or late service.
Following the elections and the release of the official results in August, an election petition, 99P/2020, was filed by the petitioners, Monica Thomas and Brennan Joette Natasha Nurse challenging the validity of the election as well as seeking an order that the election is deemed unconstitutional, null, void and of no legal effect.
Acting Chief Justice Roxane George heard the petition. At the case management stage, she raised the issue of whether former president David Granger, the representative of the coalition, A Partnership for National Unity and Alliance for Change (APNU+AFC), was a proper and necessary party to the petition.
The Chief Justice also questioned whether he had been adequately served within the required statutory period. Granger should have been done by September 21, 2020, but was performed on September 25.
As a result, the acting Chief Justice dismissed the petition, ruling that it was nullity.
The petitioners appealed the decision, but Attorney General Anil Landall and Vice President Bharrat Jagdeo objected that the Court of Appeal lacked jurisdiction to hear the appeal.
They argued that Article 163 of the Constitution creates a regime for hearing election petitions and only provides two circumstances for appeal: one, a request from a decision of the judge granting or refusing leave to institute proceedings to determine questions stated in Article 163(1) of the Constitution and two, an appeal from the determination of any of those questions in Article 163(1) or an order made in consequence of the such decision.
The Attorney General and Jagdeo argued that the acting Chief Justice’s decision did not fall into either circumstance. Therefore, neither Thomas nor Nurse had any right to appeal the decision. The majority of the Court of Appeal disagreed, holding that it did have jurisdiction to hear the appeal.
In delivering the majority ruling of the CCJ, Justice Winston Anderson disagreed with the Court of Appeal, finding that the Court of Appeal lacked jurisdiction to hear the appeal.
Justice Anderson explained that Article 163 of the Constitution, the National Assembly (Validity of Elections) Act, and the National Assembly (Validity of Elections) Rules establish a comprehensive regime for challenges to an election.
The CCJ noted that the election petition, 99P/2020, had to be determined by this framework, including whether there was compliance with the provisions for service of the petition.
The Court emphasized that Article 163(3) of the Constitution limits the right to appeal decisions of the High Court in election petitions to only two circumstances. The decision of the Chief Justice to strike out the petition because there was improper/late service on Granger did not fall into either of those circumstances; thus, an appeal was not possible.
Furthermore, jurisdiction could not be founded in Article 123 of the Constitution and section 6 of the Court of Appeal Act since the jurisdiction of the special election created by Article 163 of the Constitution, the Act and Rules must prevail over the general “civil law proceedings” jurisdiction contemplated by Article 123 and Section 6(2) of the Court of Appeal Act.
Further, the principle that general provisions of the Court of Appeal Act must yield to specific requirements in Article 163 is fundamental. Lastly, any tension between Article 163 of the Constitution and Section 6(2) of the Court of Appeal Act concerning the election jurisdiction must, naturally, be resolved in favor of the Constitution, the CCJ noted.
It also noted that there might be a rare exception to the Court of Appeal’s jurisdiction to maintain the integrity of the Constitution, a possibility considered by the CCJ in Cuffy v Skerritt.
However, Justice Anderson said there was no actual suggestion from the respondents that the Chief Justice’s decision could support an argument that could justify the invocation of this exception.
But in another opinion, Justice Denys Barrow agreed that the Court of Appeal lacked jurisdiction, but for different reasons. He argued that it must be considered that while exclusive jurisdiction is given to determine election petitions, the Court’s general jurisdiction is not excluded from operating when the issue is resolved is not a question under Article 163(1).
In this case, the acting Chief Justice’s decision to dismiss the petition as a nullity was a common question of law regarding service as required under the National Assembly (Validity of Elections) Act and the National Assembly (Validity of Elections) Rules.
He said Article 163(4) gave power to Parliament to create legislation concerning the High Court’s practice and procedure regarding the jurisdiction and powers conferred upon it by or under Article 163(4)(c).
In crafting these legislative provisions, the Parliament of Guyana included section 42 of the
National Assembly (Validity of Elections) Act and rule 21 of the National Assembly (Validity of
Elections) Rules, which g Court the same powers, jurisdiction, and authority in election petitions ‘as if the proceedings were an ordinary action.’
Justice Barrow said that these provisions are relevant to answering whether the decision to dismiss the petition is subject to the High Court’s general jurisdiction in the same way as an ordinary action.
In any event, several indications made it clear that the acting Chief Justice’s order dismissing the petition was an order of a High Court judge made in chambers. For this type of order, no right of appeal is given to the Court of Appeal, according to section 6(2(a)(i) of the Court of Appeal Act.
The result, therefore, was that the purported appeal against the dismissal by the Chief Justice of the petition as a nullity was, itself, a nullity because there was no right of appeal to the Court of Appeal to begin with.
In a separate opinion, Justice Peter Jamadar agreed with Justice Barrow’s decision. He further observed that in Guyana, the deep basic structure and core constitutional values and principles to be found in Guyanese constitutionalism should guide a court when faced with choices regarding multiple interpretations of statutory provisions. This is especially true about provisions implicating core constitutional values such as free and fair parliamentary elections.
Justice Jamadar suggested that the narrow jurisdictional issue in this appeal needs to be placed, contextualized, and understood through the lenses of democratic governance in Guyana, the role of the Courts, and the learning to be found from various constitutional authorities and authorities on the election petition jurisdiction.
In setting aside the decision of the Court of Appeal, the CCJ ordered each party to its costs.
and then 
