A RECIPE FOR GRIDLOCK

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…Legal, electoral experts warn that failure to produce ID cards can plunge the country in another round of legal actions
…say “Esther Perreira case has turned on its own facts”

FAILURE to issue Identification Cards, ahead of elections, to the more than 370,000 Guyanese who registered during the just concluded House-to-House Registration could result in legal actions being taken against the Guyana Elections Commission (GECOM), and an invalidation of the elections, one of Guyana’s legal luminaries has said.
At one of its most recent meetings, GECOM’s Secretariat proposed that General and Regional Elections be held by March 2020, noting that such a plan is in compliance with the established statutory timelines. That work-plan, among other things, make provision for the production of Identification (ID) cards, but People’s Progressive Party/Civic (PPP/C) nominated Elections Commissioner, Bibi Shadick has said that the issuance of ID cards is unnecessary at this juncture. In another publication, Shadick said ID cards are not absolutely required for an eligible voter to cast his or her ballot, pointing out that other forms of identification such as a passport can be used. In lieu of any such documents, Shadick submitted that voters could sign an oath at the polling stations. In support of that Shadick’s position, referenced was made to the 2001 Esther Perreira Elections Petition case.
But in an interview with Guyana Chronicle, a Guyanese legal luminary said the “Esther Perreira case has turned on its own facts,” while warning that failure to issue ID cards could plunge the country into another series of legal actions which could result in an invalidation of the elections by the Courts. The retired judge said while Justice Claudette Singh, who now chairs the Elections Commission, had ruled, on January 15, 2001, that the amended legislation which provided for the use of the voter ID cards in 1997 was unconstitutional, the Elections Commission must take into consideration Section 12 of the National Registration Act, Chapter 19:08. Section 12 states: “The Commissioner shall, in accordance with regulations made for the purpose, prepare identification cards for, and cause them to be issued in such manner as he thinks fit, to persons registered under this Act.”

The retired judge explained that while the National Registration Act, in Section 12, did not address the issue of voting in an election, it mandated that the Commissioner must issue an ID card to a registrant. Failure to issue ID cards, in this case where more than 370, 000 persons have registered would create an avenue for the elections to be challenged on the basis that close to 400,000 people were not issued with ID cards.

Noting that it is mandatory for the Commissioner of National Registration, Keith Lowenfield to issue the ID cards, the legal luminary said it is important for the Chairman of the Commission, Justice (Ret’d) Claudette Singh and her Commissioners to “cross every ‘T’ and dot every ‘I,’ going into these elections with the support of the Elections Secretariat.

Not applicable
“The Esther Perreira case has turned on its own facts,” the legal source iterated while contending that Esther Perreira Case is not applicable to this current situation. It was explained that in the Esther Perreira case, eligible voters were barred from voting in the absence of an ID card, in total breach of the Constitution.

“What is the effect of Act 22 of 1997? This Act introduces the concept of “no card, no vote,” that is, it made it compulsory for a person to have a voter’s identification card in order to vote. It would follow therefore that the constitutional right to vote would be denied to any person who did not produce such a card. There is nothing wrong with Parliament enacting such legislation, but any such law ought not to be inconsistent with the Constitution,” Justice Singh had reasoned in her January 2001 ruling.

“I make observation that article 159, which prohibits a person from voting if that person is not registered to vote does not add any further qualifications. With the introduction of the voter’s identification, a person may be registered and still not be able to vote,” Justice Singh had stated in her ruling. But the legal luminary while concurring with Justice Singh’s ruling iterated that registrants, in keeping with the National Registration Act, must be issued with ID cards ahead of elections. “Don’t let them use Esther Perreira willy-nilly that turned on its own facts.”

GECOM must act
Weighing in on the issue, an electoral expert told Guyana Chronicle that GECOM must act in compliance with the Constitution, the National Registration Act, and the Elections Laws (Amendment) Act, and nothing else would be acceptable. “We cannot look at it in isolation to say that you’re registered, go vote…. You registered, it is mandatory that GECOM issues you with an ID card,” the electoral experts said, adding that the National Registration Act has placed “a burden, a duty” on the Commissioner of National Registration to issue ID cards to registrants.

If I register to go on the official list of electors for elections and the Commissioner of Registration, the person of Keith Lowenfield, fails to provide me with an ID card, when the election is over, I can take him to court, and argue that he didn’t provide me with a document to show my registration. The thing is not the idea of saying I cannot turn up at a polling station without the card to register because there are other mechanisms in place but because I registered, you must, the law says, issue me with an ID card,” the expert explained.

In the other publication it was stated that Justice Singh had also ordered that elections be held by March 21, 2001 but records tell a different story. According to records, Justice Singh, though ruling that election was vitiated (invalid), said she had no power to order the then President Bharrat Jagdeo or the government to leave office. “I have no authority to ask the President, the Cabinet nor anyone in the government to step down…Therefore, the government will remain in office until the March 19 elections,” Justice Singh had told a packed courtroom.

Her ruling was in keeping with the Herdmanston Accord, and agreements that flowed from it. On December 7, 2000, Jagdeo and the then Opposition Leader, Desmond Hoyte, after a 90-minute meeting, which included Dr. Rupert Roopnaraine of the Working People’s Alliance (WPA) and Manzoor Nadir of The United Force (TUF), agreed that the pending elections would be held on March 19, 2001.

While Jagdeo, now in opposition, is demanding that the President and his Ministers of Government step down following March 21, 2019, the record shows that while as President he made it clear that he was not stepping down after January 17, 2001.