House-to-house registration legal; court cannot fix date for polls- Chief Justice -Nandall not impressed with ruling, to file appeal

Aug 15, 2019 News

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By Feona Morrison

The Guyana Elections Commission (GECOM) has acted within the remit of the powers invested to it under the laws said Chief Justice Roxane George as she declared that the current house-to-house registration exercise embarked upon by the commission is legal. In fact, Justice George held that not only is GECOM a constitutional creature, it is also an independent body and the court cannot interfere with the manner in which it executes its function, unless it is found to be unconstitutional.

Justice George was yesterday delivering a highly anticipated judgment in a challenge mounted by Attorney-at-Law Christopher Ram who had petitioned the High Court for a Conservatory Order prohibiting GECOM from conducting or continuing to conduct the current house-to-house registration process which he deemed unconstitutional.

Ram had also sought another Conservatory Order compelling GECOM, immediately, take all steps and actions necessary and requisite to hold General and Regional Elections on or before the September 18. Ram sought the order on the basis that the current registration exercise and failure to hold elections by September 18 would be in violation of Article 106 (6) and (7) of the Constitution and also the ruling of the Caribbean Court of Justice (CCJ) in the No-Confidence Motion appeals.
NOT UNCONSTITUTIONAL
“I don’t see how the house-to-house registration exercise violates Article 106 (6) and (7). The CEO (Chief Elections Officer) of GECOM has no role to play in relation to Article 106 (6) and in regards to Article 106 (7) GECOM could conduct the house-to-house registration or any other verification in the circumstance following the No-Confidence Motion,” said Chief Justice George.

There is nothing in the Elections Law (Amendment) Act or the National Registration Act which suggests that the registration exercise was unconstitutional.
According to Justice George, since GECOM is an independent body it can conduct house-to-house registration, as a means provided to it for verification of the list of voters to compile the Official List of Electors (OLE).
According to her, the laws allow for house-to-house registration as a verification exercise based on the ELA and NRA. She said that these Acts makes provisions for the house-to-house registration process and for persons to visit their district registration office to be registered. She said the Acts provide for eligible voters to be registered and persons attaining the age 14 by a specified date to be issued with national identification cards.
Justice George held, “That for these reasons it cannot be said that the house-to-house registration as a method of registration in and by itself is unconstitutional or unlawful.” She added that the registration process is consistent with these two Acts, and therefore cannot be in contravention of Articles 106 (6) and (7) of the Constitution.
In the circumstances, the Chief Justice ruled that there was also nothing in the ruling of the CCJ which suggests that the conduct of house-to-house registration is unconstitutional or unlawful.
While the house-to-house registration process will build a new voters’ register, the Chief warned that the removal of names from the list of electors is unconstitutional unless the persons are dead or otherwise disqualified as stipulated under Article 159 (2), (3) and (4) of the Constitution.
She, therefore, agreed with the submissions advanced by Ram that the current registration exercise will result in persons being deregistered, hence resulting in them losing their right to vote at the next elections. Against this backdrop, she urged GECOM to consider other forms of verification to not only verify the voters list, but to also hold timely elections.
In light of the latter, she added, “GECOM cannot operate as if it is in a normal elections cycle.”
According to the Chief Justice, persons who were previously registered and are residing overseas cannot be removed from the National Register of Registrants. Justice George stated that unless persons away from their official residence change their addresses through the house-to-house registration exercise or visit a district registration office, they would need to return to the district in which they are registered to cast their vote.
The Parliamentary Opposition continues to argue that the house-to-house registration exercise will disenfranchise eligible voters. Its position is that the current voters list can be refreshed by Claims and Objections exercise. Justice George, nevertheless, said that residence requirements from citizens is no longer a qualification for the registration process and the right to vote and the right to be registered to vote are sacrosanct.
CAN’T FIX DATE FOR POLLS
Moreover, Justice George agreed with the judgment of the CCJ that the court does not have the authority to fix a date for elections. Against this backdrop, she refused to grant a Conservator Order requested by Ram compelling GECOM to hold elections by September 18.
In his application, Ram said that the CCJ at paragraphs e and f of its Consequential Orders declared that the No-Confidence Motion against government was validly passed, thus the provisions of Article 106 (6) immediately became engaged.
In spite of this, Ram argues that the Cabinet including the President has not resigned “and in willful and flagrant violation of Article 106 (6) and (7),” the President has not issued a proclamation dissolving Parliament nor fixed a date no later than September 18 for the holding of general and regional elections. The Attorney-at-Law had argued that his interpretation of the CCJ ruling is that elections are to be held within three months from when the court delivered its judgment, that being June 18.
However, the Chief Justice in determining the issues raised in this regard relied on paragraphs six and seven of the CCJ’s judgment in the No-Confidence Motion appeal.
Paragraph six states, “Given the passage of the no confidence motion on 21 December 2018, a general election should have been held in Guyana by 21 March 2019 unless a two thirds majority in the National Assembly had resolved to extend that period. The National Assembly is yet to extend the period. The filing of the court proceedings in January challenging the validity of the no confidence vote effectively placed matters on pause, but this Court rendered its decision on 18 June 2019. There is no appeal from that judgment.”
Seven adds, “Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be held. It would not therefore be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities.”
It continues, “It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no confidence motion was validly passed as long ago as 21st December 2018.”
The Chief Justice, therefore, underscored that she was bound by the ruling of the CCJ. For this reason, she agreed with the regional court that elections were due by March 21 given that the No-Confidence Motion was passed since December 21, 2018.
She pointed out that it was not the role of her court to set a date for elections, but rather for the political actors to return to Parliament and activate the extension proviso of Article 106 (7).
According to Justice George, she cannot and will not re-fix the date the No-Confidence Motion was passed to June 18 when it was passed since December 21, 2018. To do so, she said, would be out of the court’s jurisdiction. She noted that the court will not usurp on the powers of the executive and the legislature.
In her ruling, the Chief Justice explained that the CCJ did not implicitly ordered that elections be held within three months of its ruling. In fact, Justice George emphasized that the CCJ intimated it was not the role of the court to fix a date for polls.
WE WILL APPEAL
Ram’s lawyer, Anil Nandlall, said that with the utmost respect, he is not impressed with the Chief Justice’s ruling that the registration process is not unconstitutional and he intends to file an appeal. Nandlall maintains that there is a timeframe implied in the regional court’s ruling for the holding of elections.
Speaking with reporters on the court corridor, Nandlall said, “Obviously we will appeal. We do not agree that no timeframe for the holding of elections were fixed. The Chief Justice, herself, said in her ruling that Article 106 (6) and (7) was activated. It cannot be open ended. The CCJ’s judgment could not have meant that elections would never be held unless Parliament agrees.”
This led him to ask, “Suppose Parliament does not agree?”
WELL REASONED
Attorney General Basil Williams who was a Respondent in the matter told reporters, “It was a well reasoned judgment. All that the applicant asked for the court refused just as in the case of the CCJ and of course the court accepted that the matters were Res judicata (were litigated already).
“What is very important is that the house-to-house registration is not unconstitutional. No date was ever fixed by the CCJ and she (the Chief Justice) won’t fix a date either. Nor no elections are to be held in three months. There was nothing that was asked for by the applicant that was successful,” Williams noted.
It was always Williams’s position that house-to-house registration is vital in creating a credible list of electors for the impending elections. He has insisted that the old list is invalid and expired and GECOM is taking the necessary steps to cleanse the list.
In the meantime, the Opposition has encouraged its supporters to boycott the registration process. Ram, through a newspaper ad, said that he, too, will not be participating in the house-to-house registration exercise. Government has already gone to parliament and has allocated a little over $3B for GECOM to hold polls.
Moreover, Ram was ordered to pay $500,000 in court cost to the Respondent Chief Elections Officer, Keith Lowenfield, while Williams was ordered to pay 80% of that sum to Ram who was successful in an aspect of his challenge.

 

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