Dear Editor,
RALPH Ramkarran, S.C. gave his Conversation Tree Column a somewhat poignant caption. “The ghost of Esther Perreira” (Sunday Stabroek, November 3, 2019). Poignant, because as I will explain below, the Esther Perreira election decision by then Justice Singh (now Chairman of GECOM) suffered a constitutional death. With his politician’s blinkers of a presidential aspirant, Ramkarran seeks, like the risen Christ, to resurrect the Esther Perreira case to haunt the GECOM chairperson, in GECOM’s compilation of a credible official List of Electors (OLE) for the March 2, 2020 General and Regional Elections (GREs). (Dr Leslie Ramsammy also with his politician’s blinkers has joined the choir, “Guilty of Voters Suppression,” Kaieteur News 2019-11-05; his deserves only mention, not forensic examination).

Ramkarran’s misleading criticism and disingenuity must be exposed. Ramkarran as I show below is also wrong about his other view that GECOM’s plan to exclude from the OLE the names of some 25,000 persons who have not since 2008 uplifted their ID cards is “unlawful.” Readers, the constitutional demise of the Esther Perreira case (EP) in which the 1997 GREs was vitiated for ID card unconstitutionality happened this way: you see, at the time of the 1997 GRE, there was no article 159 (2) (c) in our Constitution [only article 159 (2) (a) and (b) which constitutionally limited qualification for voting to being 18 years and upwards, and citizenship]. But after the 1997 GRE, and perhaps because of its vitiation, that state of the law was changed when the Constitution was altered/amended by the introduction of a sub article (c) to article 159 (2). That newly introduced article 159 (2) (c) about qualifications of voters provides that they “satisfy such OTHER qualifications as may be prescribed by, or under ANY LAW.” Here, then (unlike as was the case for the 1997 GRE) was, and is, the constitution’s own permission for parliament by principal legislation; and GECOM by subsidiary legislation (SL) (as the case may be) to ADD “other” qualifications [to those of age and citizenship (article 159 (2) (a) and (b)] which had to be satisfied for eligibility to vote, by any elector and by necessary implication to be on an OLE. So the disability which affected Parliament/GECOM in the Esther Perreira case, has been effectively removed by that article 159 (2)(C)alteration.

Parliament can now provide inter alia, for ID card, and being “resident IN Guyana (a difference from being a resident OF Guyana)” as an added/”other” qualification. So, contrary to Ramkarran’s assertion, EP does not hover over any post-1997 GRE. Unlike as with Esther Perreira, now we have a combination of express constitutional and permitted statutory qualifications; being when prescribed “such other qualifications as may be prescribed by or under ANY LAW” within the meaning of article 159 (2) (c). And “any law” for all practical purposes and intent would include not only Acts of Parliament, but also SUBSIDIARY LEGISLATION (SL) [see article 232 (1)which defines “law” as including “instrument having the force of law”] made by GECOM, provided such SL is not inconsistent with an Act of Parliament (see section 20 of Interpretation and General Clauses Act, Cap 2:01) or, of course, the Constitution.

All notices, orders etc duly made by GECOM and gazetted are SL, and as SL they have the same force of law as Regulations (which are also SL) All in all, the EP constitutional demise and its post-1997 GRE non-applicability are aptly expressed by the legal maxim: Cessante Ratione Legis, Cessat Ipsa Lex (if the reason for a law ceases to be valid, then let the law itself cease).

I turn now to the question of whether GECOM (including the Chief Election Officer) has the vires to exclude in its preparation or compilation of the OLE for the March 2020 GRE, names of persons who have not uplifted their ID cards since 2008. Ramkarran, SC., purportedly relying on the CJ (ag) ruling in the recent Christopher Ram case, argues that any such exclusion is a method of compilation that is “patently unlawful.” Such “a patently unlawful project,” ominously, portends the wrecking of “any prospects of an acceptable election process and the acceptability of the election results.” Put into context, this is the ominous warning of a hopeless presidential aspirant, with obvious vested political motive. I dissent from, and entirely disagree, with his view.

It is fallacious. It is predicated on the fallacy of ignoring GECOM’s potential delegated legislative facilities and capabilities. Upon a close analysis, it is not supported by the CJ (ag) ruling in Ram. In a close analysis, one starts with the very restrictive wording of article 159 (1) of the Constitution itself viz “No person shall VOTE at an election UNLESS he or she is REGISTERED as an elector.” Words clear and simple and unambiguous. The next step in this analysis, is to draw attention, again, to article 159 (2) (c) which is quoted and discussed above. (I pause here to state unequivocally that the only document wherein a person can be “registered as an elector” is the OLE; not the NRR, not the PLE.

I remind that “any law” in article 159 (2) (c) would include, relevantly, SL duly prescribed by GECOM, as SL is an“instrument having the force of law” [article 232 (1)]. Mr Ramkarran must be aware, also,of article 162 (1) (a), and the generality of GECOM’s capacities thereunder. Registration is but a step or stage in the process of compilation of the OLE. There is an obvious mischief (antidemocratic) which registration aims to cure or avoid. Generalities aside, art.159 & 162 are silent as to means whereby registration is effected.
The means is left to statute law in the making of which, as a matter of sheer common sense and constitutional logic, the Constitution’s creature GECOM, must have a leading, decisive role. Any other argument would make a mockery of GECOM’s constitutional status and electoral purpose. And little wonder that the Constitution itself (as with the four service commissions) in clear words has shielded GECOM from overreaching, intrusive judicial review. The OLE is not some matter of theoretical, abstract niceties. It is, as a voting matter, of the constitutional logic and common sense of exclusion of deceased persons. The DECEASED has no democratic right, cannot vote, nor can anyone lawfully vote for a DECEASED person. The deceased has no constitutional right to be on the OLE. Seen this way, the true issue for GECOM is not at all about uplifting ID cards (the deceased cannot uplift ID cards); the true issue is and must be, about proof of a person, otherwise entitled to be on the OLE, being deceased, and as such his/her exclusion from the OLE. So, if this is the thinking of GECOM regarding non- collection of ID cards, it cannot be faulted. Surely, non-collection over a period of some 11 years prompts in the mind of any rational person the question: is he/she dead? Of course, there are other reasonable hypotheses of varying degrees of cogency.

This issue was not directly raised before the CJ (ag) in the Ram case. But in her ruling at para [158] of her transcripted judgment the CJ (ag) did observe obiterviz_“In order to assist in effecting changes to the register, the regulations provide for the Register General . . . to provide reports to GECOM as regards the names of persons who would have died . . . Apart from removing the deceased which the NRA permits . . .” So, it is not open to senior counsel to argue by reference to Ram that it would be a “patently unlawful project” given what, in substance, must be what is presumably GECOM’s thinking, and what is intended by GECOM’s exclusion from the OLE of deceased persons. And it may well be the case that had this issue of exclusion of names of persons who have not uplifted their ID cards since 2008 been raised and articulately argued, the CJ (ag) would on general principles of law of the PRESUMPTION OF DEATH and a sensible application of that principle, might have been persuaded to rule that “deceased” encompasses death provable by any such method as is permitted by the laws of Guyana (including regulations, but not limited to regulations). A death certificate issued by the registrar general is not exhaustive and exclusive, but is one such method of proof.

Another legal method of proof of death is, I submit, the well established Common Law (rebuttable) presumption of death (POD), (proof by presumption). Its essential feature is seven continuous years unawareness by persons likely to have seen or heard from the person whose death is in question, if alive. And, this seven-year period, falls well within the 11-year time line plan by GECOM, starting in 2008. It is all about a legally permissible method of proof of an ID card issue having become “deceased” (as observed by the learned CJ(ag) at para [158] ibid). On one possible view of the matter, non-upliftment of his/her national ID during a continuous period of seven years might be circumstantial evidence, and a circumstance, warranting GECOM’s due-diligence consideration of the POD. I can think of no reason in principle why POD would be inappropriate to our election laws and not operative extra judicially by a constitutional creature such as GECOM. In our laws there is no presumption of continuance of life. So, being on the National Register of Registrants (NRR) is, it is submitted, no barrier to GECOM acting on a POD law in respect of persons who have not collected their ID cards. It is for GECOM to make gazetted notices/order, declaratory of the Common Law POD, and to act on such SL. In this way, the POD is given the imprimatur of STATUTE. Any one aggrieved by an exclusion from the OLE would have locus standi to timeously challenge by personal appearance his/her exclusion. If, ex hypothesi, an excluded person were to appear at GECOM’s office and satisfactorily prove his/her identity, then the POD is ipso facto, and ipso jure rebutted; that person’s name must be then included. Mass media (particularly newspapers) mode of inquiry would seem necessary also (the anyone knowing whereabouts of a missing person type).

It is for GECOM to timeously have a suitable, workable SL drafted, passed by resolution and gazetted. The matter is complex, but the legal tools are all available and not beyond a lawyer’s ingenuity, pursuant to power conferred by the very crucial and enabling article 159 (2) (c) of the Constitution (the learned reader would find the analogous Jamaican election case of Thompson v Forrest and Another (1967) 11 WIR, 196 illuminating and instructive reading on the question of the constitutionality of GECOM’s planned omission from the OLE, of persons constitutionally qualified to be registered as electors).

En passant, well known personalities/ who have not, inexplicably, uplifted their ID cards, would be treated as an exceptional circumstance by GECOM as prescribed in an SL. All of this exposes the fallacy of Ralph Ramkarran’s precipitous and pre-emtory criticisms (even as I here acknowledge that I hold no brief for GECOM and my standing in this public matter is that of a learned –Guyanese citizen-elector, on a matter of extraordinary and far-reaching importance, in the public interest).

I end with this: the whole beneficial purpose of the constitutional restriction of a right to vote being contingent on being “registered as an elector,” is to promote and achieve the democratic idea and ideal of one man, one vote. This is not about vote suppression! Far from it. This is about vote credibility, integrity, and veracity. And who can be against that? Human frailty does not allow for perfect election machinery with divine prescience. Yet, it is GECOM’s constitutional, peculiar and exclusive supervisory duty (which it must not abdicate by yielding to unfair, oppressive criticisms) by timeous use of its delegated legislative capacities, ensure this democratic ideal is not thwarted by phantom registrants being included on the ultimate OLE, and deceased (actual or presumed) persons, mysteriously, voting in our March 2, 2020 GREs.

Regards,
Maxwell. E. Edwards.