…says application is an abuse of the court process

ATTORNEY General and Minister of Legal Affairs, Basil Williams, on Monday, filed proceedings in the High Court to block the legal challenge mounted by Christopher Ram against the Guyana Elections Commission (GECOM) in light of its decision to proceed with House-to-House Registration.

Ram, through his attorney Anil Nandlall, filed a Fixed Date Application (FDA) on July 22, challenging the constitutionality of the on-going House-to-House Registration, on the grounds that it is in violation of Article 106 (6) and Article 106 (7) of the Constitution, and the letter and spirit of the Judgment and Consequential Orders of the Caribbean Court of Justice (CCJ) in the consolidated appeals. Ultimately, he wants the Court to rule that the national registration exercise is illegal and of no effect.

But the Attorney General, in a Notice of Application filed on Monday, asked the Court not to exercise its jurisdiction to hear or grant the Orders sought in the FDA. Alternatively, he has asked for an order striking out the FDA on the grounds that it is an abuse of the process of the Court.

In his justifications, the Attorney General explained that Ram was party to the consolidated appeals heard in the Trinidad-based CCJ – Guyana’s final appellate court – for which all the matters relative to the No-Confidence Motion, Election, and GECOM’s ability to hold election were addressed. In particular, among the orders sought from the CCJ, was one intended to have the official list of electors, which was produced pursuant to Order 15 of 2018 with the qualifying date of October, 2018, used in the pending elections. “…All parties in the consolidated appeals in the CCJ made extensive written arguments and tendered evidence before the Court. GECOM was permitted by the CCJ to put evidence before the Court about the House-to-House Registration. On 1st May, 2019, GECOM, a party in these proceedings put evidence before the CCJ on the issue of House-to-House registration through an affidavit filed by the then Chairman Justice James Patterson,” the Attorney General pointed out.

He said the CCJ had carefully considered the unchallenged evidence of then Chairman of GECOM including the fact that a decision was taken by the Commission over 10 years ago that house-to-house registration was necessary for ensuring compliance with the Commission’s mandate under Article 162 of the Constitution. It was noted too that on July 24, 2018, the Commission unanimously decided that House-to-House Registration should be held in 2019 in preparation of the next General and Regional Elections, which were originally due in 2020. The Attorney General said it was on that basis that the National Assembly made financial provisions for GECOM to carry out the nationwide exercise.

Records, he said, also show that by a decision of the Elections Commission taken on February 19, 2019 during a Statutory Meeting, the then Chairman Justice (Ret’d) James Patterson advised President David Granger on February 21 that credible elections could not be held by March 21, 2019 and that, based on a 2014 decision, the Commission would require approximately six months from the time of notification, to prepare for credible elections.

In March, the Chairman reported to the President that the Elections Commission was handicapped in taking pivotal formal decisions on the conduct of elections because certain Commissioners began withdrawing themselves from the Commission’s statutory meetings.
“…The Secretariat had advised that it was now impossible to compile an electoral list with a qualifying date as at 30th April, 2019 for use from 1st May to 31st October, 2019 so that the Commission could only anchor its list with a qualifying date as 31st October, 2019 which could only be used from 1st November, 2019; and that the Commission would be in a position to hold an election by late November, 2019 if it received the additional funding requested,” Minister Williams said as he summarised a letter sent to the President by the then GECOM Chairman.

The Attorney General has drawn the conclusion that the issues raised in Ram’s FDA are of no significant constitutional importance, and have been fully ventilated at the CCJ. The court, he argued, did not accede to the orders sought. In ruling on the matter, the CCJ said: “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 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 21 December 2018.”
From its ruling, Minister Williams said, the court clearly understands the sacred and sacrosanct doctrine of separation of powers which underpin the country’s constitutional democracy. He also drew the High Court’s attention to the provisions within the Constitution that allow for the period for the conduct of elections to be extended.

“…Since the date for holding elections has passed, it is now strictly within the remit and province of the National Assembly to extend the time for the Holding of General and Regional Elections based on the language of Article106 (7) and it is not for the Court to address such matters,” Williams told the court in his application.

The High Court has thus far refused to grant a conservatory order, sought by Ram, to halt the data gathering process.

The Elections Commission commenced House-to-House Registration on Saturday July 20, 2019, and has recorded personal data of over 50,000 persons to date. The national registration is expected to conclude in October, 2019.