Finality clauses exist even in jurisdictional challenges – Eslyn David lawyers argue  

—say CCJ cannot trample on Appeal Court’s jurisdiction to hear Ali/Jagdeo matter

DPI, Guyana, Wednesday, July 01, 2020

Lawyers for private citizen Eslyn David have maintained that the Caribbean Court of Justice (CCJ) is without jurisdiction to rule on the application of Mohammed Irfaan Ali and Bharrat Jagdeo which challenges the decision of Guyana’s Court of Appeal.

Even if it is found that the Appeal Court here did not have jurisdiction to hear the Eslyn David vs Guyana Elections Commission (GECOM) matter, the battery of lawyers have argued that the CCJ still cannot entertain that appeal.

Trinidad Attorney Senior Counsel John Jeremie, who led the team of lawyers of Keith Scotland, Mayo Robinson, Roysdale Forde, Timothy Affonso and Rondelle Keller submitted to the CCJ this morning that the Apex court in this instance cannot hear the matter and cannot trample on the exclusivity of the Court of Appeal.

Jeremie addressed the court just after PPP’s attorney Senior Counsel Douglas Mendes, whose submission challenged only the jurisdiction of the Appeal Court to hear the David case, since, according to him it did not border on Article 177 (4) of the Constitution.

He contended that while the CCJ does not have jurisdiction to appeal any decision handed down from Article 177 (4), the matter brought by David was not within that section. Senior Counsel Mendez also argued that the 177 (4) comes into play only after the election of a president.

But Jeremie showed that the Appeal Court was well within jurisdiction, pointing out that David’s application to the Court of Appeal was simply for the court to determine the interpretation of the words “more votes cast” as is set out in Article 177 (2) (b) of the Constitution, particularly since the matter relates to the election of a president.

“I say the Court of Appeal had jurisdiction. But even if I am wrong, I am saying that this court lacks the jurisdiction to entertain this appeal because the clear intendment of the Constitution and the agreement is that disputes of this type end in the Court of Appeal even if the Court of Appeal was wrong on the question of Jurisdiction,” Jeremie told the court.

Providing reference to the finality clause of 177 (4) Attorney Jeremie cited two cases; one addressing the matter of jurisdiction and the other the meaning of the election of a president.

He said in the Eusi Kwayana 1980 application, the Court of Appeal acting as the final court, spoke to the issues that can be properly dealt with and the qualification of the president or the interpretation of the constitution.

“Those words do not require any interpretation. They are the words of the final court of appeal in Guyana. The case tells us how the section is to be construed,” Jeremie contended.

He also relied on the Narayan Bashkao case of India, showing authority on the meaning of the elections of a president.

According to Jeremie, the word has a long usage in connection with the process of selections of proper representatives in democratic institutions. In the narrow sense, he said, it is used to meet the final selection of a candidate which may embrace the result of the poll.

In the wider sense of the word is used in the wide process, culminating in a candidate being declared president. In this regard, he said a president does not have to be first elected before Article 177 (4) comes into play.

Presiding Judge, the Hon Jacob Wit presenting a hypothesis, asked if the Court of Appeal in its ruling had determined that the elections were to be considered by the term “more invalid votes cast,” if it would still be correct in jurisdiction.

Attorney Jeremie said that as strange as that may be, the Appeal Court’s decision would still be final.

“In respect of the sovereign pronouncements by the Guyanese parliament in enacting the CCJ Act and in respect of the provisions of the Constitution, on the authority as silly as that proposition is, this court has no jurisdiction to trespass on that once it is the provisions of Section (4) (3) are there and once the provisions are cast in terms of the constitutional provision,”.

“That is the result which deeming provision contained in the constitution dealing with exclusivity and finality and the conjoined effect of the CCJ Act Sect 4, which is the conclusion that we are drawn to. It is a position which is well settled by authority and which has never been a subject of rebuke.”

CCJ’s President Justice Saunders asked if there would be a problem with a  matter falling under sect 163 of the Constitution brought to the Court of Appeal purportedly under article 177 (4), and a final decision given.

Jeremie said in principle, the court the CCJ still has no jurisdiction to decide whether a superior court was wrong or not if that has been granted exclusive and final jurisdiction.

The submissions today are heard by President Hon Justice Adrian Saunders, Hon Justice Jacob Wit, Hon Madam Justice Maureen Rajnauth-Lee, Hon Justice Denys Barrow and Hon Justice Peter Jamadar.

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