Doctrine of res judicata misconceived and inconsistent with the law. S.C Jeremie tells Appeal Court.
DPI, Guyana, Saturday July 25, 2020
Senior Counsel John Jeremie, Attorney for Applicant, Misenga Jones, on Saturday argued that Section 22 was “long and wide” and that Order 60 was invalid as its provision conflicts with Section 162 (1) of the Constitution.
SC Jeremie was presenting his oral arguments to the Court of Appeal, against the recent ruling of Chief Justice Roxane George in the matter of Jones v the Guyana Elections Commission (GECOM).
“We appeal from the decision of the learned Chief Justice on four plaques which corresponds in broad terms to a question raised by the learned Chief Justice in the court below; the constitutionality of Section 22 of the election laws (Amendment Act).” S.C. Jeremie said as he began his presentation.
Chief Justice Roxanne George had dismissed Jones’ application ruling that Section 22 of the ELA, pursuant to which Order 60 was issued, is unconstitutional.
Jones had also asked the court to rule that as a consequence of Order 60 being invalid, the recount results were also invalid.
SC Jeremie presented that the Chief Justice held inter alia (among other things) that the case was a matter which was res judicata. – meaning a cause of action may not be relitigated once it has been judged on the merits.
However, the Senior Counsel argued that reliance on the doctrine of “res judicata” is misconceived and inconsistent with the law.
“The learned Chief Justice held that the relief sought in the fixed date application was all based on issues that were litigated previously and she felt bound to follow those respective pronouncements on the law (paragraph 85 of her judgment) … I argue that they were not. There is clear authority for the proposition that res judicata does not apply in these cases and with respect to these points.”
The Senior Counsel also said that his team’s disagreement with the constitutionality of Section 22 contained in the Election laws (Amendment Act), is due to it being long and wide and unregulated.
“That act was enacted in 2000, it was enacted as Act 15 0f 2000. the Constitution as we all know was enacted in 1980 and contains the usual supreme law clause found in all our Commonwealth Caribbean constitutions, that clause in Guyana is in Article 8 in the constitution. Article 8 provides that this constitution is the Supreme Law of Guyana and, if any other law is inconsistent with it the other law shall to the extent of the inconsistency be void,” Jeremie explained. The words, he added, were clear and admit no interpretation.
By contrast, Jeremie used as example Article 170 of the Constitution which spoke differently, to the mood for making legislation.
“Article 170 says legislative functions shall be exercised by bills passed by the National Assembly and accented to by the President. The language there is mandatory.,” he noted. The senior Counsel also argued that Order 60 is in direct conflict with 162 (1) of the Constitution, and further Order 60 was unconstitutional in this particular instance.
Quoting from a case in India, SC Jeremie said: “even if a recount produces a result which demonstrates that the wrong person is declared to have won, that cannot stand in the face of these orthodox principles.”
SC John Jeremie presented his oral arguments before Justice of Appeal Dawn Gregory, Appellate Judge Rishi Persaud and High Court Judge Priya Sewnarine-Beharry, on Saturday morning.