The Court of Appeal will hand down a summary ruling tomorrow in the case brought by Forward Guyana Movement (FGM), challenging the High Court’s decision in the elections’ case – Krystal Fisher v. the Guyana Elections Commission. 

In August, just days before the General and Regional Elections, acting Chief Justice Navindra Singh ruled that the Guyana Elections Commission (GECOM) acted within the confines of the Constitution when it excluded the Forward Guyana Movement and Assembly for Liberty and Prosperity (ALP) from the ballot papers for a number of Regions on the grounds that the two parties did not contest the election in those regions.

Today, the appeal was heard before the acting Chancellor Roxane George and Justices of Appeal, Rishi Persaud and Nareshwar Harnanan.  The acting Chancellor announced that a ruling in the case will be delivered at 11:30hrs on Thursday.

Ahead of addressing the issue of jurisdiction, Attorney Vivian Williams was pressed by the Court to address Fisher’s failure to pay the costs as ordered by the High Court.

The Chief Justice (ag) had ordered Fisher to pay the Elections Commission and the Attorney General Anil Nandlall – an added respondent – costs to the tune of $1M each.

Williams, in admitting that the costs were not paid, told the Court that there should be no consequences for such failure, on the basis that his client simply could not afford it – a position he maintained outside the Courtroom.

“There must be access to justice. And access to justice is deprived if you have costs that are prohibitive. And in this case, cost is prohibitive. And as I pointed out to the court, if you have situation whereby persons who are dealing with that kind of costs, have to satisfy costs before they could even approach the court, what you are doing is denying access to justice. I think the Court recognized that, so it heard the case. We hope that eventually, cost will simply disappear. We hope that as the case moves along, we will finally be able to get a decision which we thing will end in our favour and a reversal of cost,” Williams said.

Though the appellate judges agreed to proceed with the hearing of the case, the Chancellor (ag) told Williams that litigants must obey the orders of the Court.

“We would like to place on record that while we would allow the appeal to proceed, it must be noted that litigants cannot and should not disobey Court orders and then expect that a Court will automatically, hear them,” Chancellor George said.

Acting Chancellor George also pointed out that a number of relief sought in the Appellate Court were not canvassed in the Court below, such the request for the Appellate Court to order GECOM to take all necessary steps to ensure that the lists of all qualifying political parties are placed on ballot papers in geographic constituencies for the conduct of the next General and Regional Elections.

“Can an appellant properly advance new prayers for relief?” the acting Chancellor questioned, as Williams responded in the negative, and proceeded by asking the Court to simply exclude those prayers.

On the matter of jurisdiction, he argued that the Court has the jurisdiction to hear the appeal, arguing that issue before the Court addresses “constitutional rights” of citizens and not the validity of the elections. He told the Court there is no need for an election petition to be filed.

“On jurisdiction or position is, if a constitutional issue that affects the right to vote, affects the constitutionally entrenched and protected rights of citizens arise, a court need not wait until after the elections to hear the matter. That is what happened in this case, that Ms Fisher argues that what GECOM is doing, the manner in which it is reading ROPA is infringing her right to vote, and not only her right but the rights of people in five of 10 regions of the country. And so, our position is, those who are affected don’t have to wait until after the polls to file an election petition,” Williams explained.

Justice Persaud, however, asked Williams what would have been the effect, if the prayers sought were granted. In grilling Williams on the issue, Justice Persaud pointed out that the matter was heard and determined after voting had commenced, particularly, in the case of the members of the Disciplined Services, who voted 10 days before the elections.  

“The point is, what would have been the effect if those prayers were granted? Would election have continued?” Justice Persaud asked.

Williams responded in the affirmative but told the Court it would not have left a residual issue as to whether the Elections were lawfully conducted but Justice Persaud said “it would have directly impacted the electoral process.”

But Attorney for the Guyana Elections Commission, Senior Counsel Anthony Astaphan told the Court that the case lacked merit. Astaphan argued that by not contesting the various geographic constituencies, the parties forfeited their right to be on the ballot paper. FGM had not submitted Lists of Candidates for Regions 7, 8 and 9.

“If no list is put forward by the political parties, that is their choice and their loss,” Astaphan argued. The Attorney General put forward a similar argument, submitting to the Court that the Appellate Court has no jurisdiction to hear the case.

Related posts:

CCJ to hand down ruling in Election petition case next Wednesday Appeal Court rules it has jurisdiction to hear appeal of Election petition dismissal Court of Appeal ruling on GECOM Declaration matter is final; CCJ has no jurisdiction says AG Appeal Court to hand down ruling on Monday in Election Declaration case