already been completed. It was therefore unnecessary for the Court of Appeal
majority to qualify “votes” in Article 177(2)(b) by inserting before it the adjective
“valid” and, in any event, they were wrong to do so. Article 177(2)(b) rightly only
needed to reference “more votes” and there was no basis for the Court of Appeal to
assume jurisdiction to interpret that provision. It is clear that, under the legal
infrastructure governing the electoral process, unless and until an election court
decides otherwise, the votes already counted as valid votes are incapable of being
declared invalid by any person or authority. In this respect, the Guyanese electoral
system is not very different from other such systems in other Commonwealth
Caribbean countries.
[47]
By the unnecessary insertion of the word “valid”, the Court of Appeal impliedly
invited the CEO to engage, unilaterally, in a further and unlawful validation
exercise unknown to and in clear tension with the existing, constitutionally
anchored electoral laws. That further exercise, which the CEO was quick to
embrace in breach of the Court of Appeal Stay of proceedings, also had the effect
of facilitating a serious trespass on the exclusive jurisdiction of the High Court
established by Article 163. The idea that the CEO or GECOM could, in an
unaccountable, non-transparent and seemingly arbitrary manner, without the due
processes and the legal standards established in Article 163 and in the Validation
Act, disenfranchise scores of thousands of electors is entirely inconsistent with the
constitutional framework. Whatever allegations of irregularity attended those votes
(and we neither agree nor disagree as to the existence of such irregularities) must
be adjudged by the High Court under Article 16350 as was correctly stated by the
Chairperson of GECOM.
[48]
It must be appreciated that the precise words used in Article 177(4) actually predate the period when the President was deemed to be elected as a result of votes
cast for a list of candidates seeking election to the National Assembly. The exact
formulation of what is now Article 177(4) was originally inserted as Article 30(13)
50
Section 140 of the Representation of the People Act provides, inter alia, that questions as to performance by GECOM of its functions
are to be enquired into only pursuant to the jurisdiction conferred by the Constitution under Article 163.