…AG argues in appeal in house-to-house registration case

ATTORNEY General, Basil Williams, is arguing that by virtue of Election Laws (Amendment) Act, 1991 Act No. 3 of 1991, the Legislature removed non-resident voting in Guyana and the Preliminary List of Electors should only include an Ambassador or High Commissioner, their wives and children of the Ambassador or High Commissioner, a member of staff of an embassy and their family in order to be registered as an elector.

He made the comments in his affidavit in support of the appeal against the High Court ruling that the removal of persons from the voters’ list is unconstitutional and that residency was not a requirement to be on the voters list. Williams, however, is contending that by necessary implication, all other non-resident Guyanese cannot vote in General Elections in Guyana if they were not resident in Guyana and registered during the qualifying period.

The respondents in the case are Christopher Ram, Chief Elections Officer, Commissioner of National Registration and Guyana Elections Commission.

This latest move by the attorney general comes even as the Elections Secretariat intensifies preparations for the much-anticipated General and Regional Elections and has advised the President that the polls could be held at the end of February next year.

Such preparation includes the merging of the data gathered from the recently-concluded house-to-house registration with the National Register of Registrant Database. Initially, the Elections Secretariat had intended to generate a new register from the data gathered during the house-to-house registration but the High Court, while ruling that the national registration exercise was legitimate, said that it would be unconstitutional to remove persons from the National Register of Registrants unless deceased or disqualified pursuant to Article 159 (3) and (4). This resulted in the Elections Commission taking a decision to merge the data from the national registration exercise with the National Register of Registrant Database in its attempts to facilitate early elections.
The attorney general, in appealing in part the decision of the High Court, asked for an interim stay of execution of part of the judgment handed down by the Chief Justice (ag) Roxane George-Wiltshire on August 14, 2019 until the Fixed Date Application (FDA) is completely heard and a determination is made.

He is maintaining that Chief Justice (ag) Roxane erred when she ruled that it would be unconstitutional to remove persons from the National Register of Registrants unless deceased or disqualified pursuant to Article 159 (3) and (4).

In asking for the summons, the attorney general noted that the issues in the matter touch and concern matters of national importance pertaining to general elections in Guyana and the composition of the National Register of Registrants from which the Preliminary List of Electors is extracted. The application for the summons was filed by Solicitor General, Nigel Hawke, on behalf of the attorney general.

THOSE WHO QUALIFY
He said that the only non-resident Guyanese that could be on the Register of Registrants are Ambassadors or High Commissioners, their wives and children and staff and their wives and children. All other non-resident Guyanese are excluded from the list. Williams said this underscores the requirement for residency during the qualifying period as contemplated by Article 159 of the Constitution.

He said too that under the principles of International Law, embassies, high commissions or consulate offices would be deemed to be the sovereign territory of Guyana and it would be as if the high commissioner or ambassador, family and staff would be voting in Guyana.

Additionally, he said that with the introduction of overseas voting in 1968, a reasonable inference is that residency in Guyana could not have been part of the 1980 Constitution as opposed to the 1966. The inclusion of residency in the 1970 Constitution was a clear oversight on the part of members of the Legislature, Williams has contended.

He said too, that by virtue of Constitution (Amendment) No. 4 of 1991, the residency requirement for voting in Guyana was reinstituted and became a necessary requirement. According to the Explanatory Memorandum for Constitutional ( Amendment) Bill No. 36 of 1991 which was the Bill pertaining to Constitution (Amendment) No. 4 of 1991 prescribes : “The amendment to article 159 provides that from the 26th March, 1991, ( the date when the Electoral Laws ( Amendment) Act 1991, Act No. 3 of 1991, came into operation) a citizen of Guyana, who is not a diplomatic agent or member of staff of a diplomatic mission or the wife or child of such person, must be resident in Guyana in order to be qualified to be registered as an elector for elections.”

Williams said the Bill and explanatory memorandum are very explicit as it relates to the intention of the Legislature with respect to residency. Williams said too that he was advised by Mr. Charles Fung-a-Fat, Chief Parliamentary Counsel, SC, CCH, and verily believe that there was omission of the alteration of the revised constitution by section 2(f) of the Constitution (Amendment) (No.4) Act 1991 ( Act No. 36 of 1991) and that the omission of an alteration to the article of the revised edition of the Constitution does not affect the validity of the article of the Constitution. According to him section 10 of the Law Revision Act, Chapter 2:02 provides that “no written law omitted, under the authority of this act or otherwise, from the Laws of Guyana shall be deemed to be without force and the validity by reason only of the fact that it was so omitted.” “That follows that Article 159 (2) has to be construed as including Residency in Guyana for the purposes of being an elector. As a consequence, the learned Chief Justice erred without averting to Constitutional Amendment No. 4 of 1991 in finding that there are no laws setting out any additional requirements, more particularly residency, in relation to a person qualifying to be registered to vote,” Williams argued.

RESIDENCY CONSTITUTIONAL
He said the residency requirement in order for citizens to vote is a part of the Constitution of Guyana. “The position is buttressed by the Report of the Constitutional Reform Commission to the National Assembly of Guyana dated the July 17, 1999 which reveals the true purport and intent in relation to residency that is: “Only Guyanese citizens resident in Guyana should be permitted to vote in elections”

The AG said the National Registration Non-Resident Regulations made under section 19 of the Act sets out the protocol in section four as to what should obtain for a non-resident person to be registered if they were not resident during the qualifying period. “These regulations support the concept of residency in Guyana as a paramount requirement to be on the National Register of Registrants. Additionally, the aforementioned acts and regulations accord with the requirements in Article 159 (2) (c) addressing other qualifications as maybe prescribed by or under any law and the learned Chief Justice fell into error in finding that there was no law setting out a requirement for residency and that the removal of names from the register would be unconstitutional,” Williams said in his affidavit.

GECOM EMPOWERED
According to Williams, GECOM is empowered to compile a register under Article 159 (5) of the Constitution at the qualifying date and did so pursuant to section six of the National Registration Act. He further added that the finding of the learned Chief Justice also collides with section nine of Act No. 31 of 2007 which provides, “The commissioner shall establish a central register which shall consist of a computerised database of the information of the originals of the registration records and the originals of the registration records of all persons registered under the house-to-house registration process mentioned in section six, and the data so generated shall be utilised to effect the continuous registration process.”

He said the provision does not speak to or have recourse to any other database and “that the thrust of Act No. 31 of 2007 was the creation of a new data base that would aid in the continuous registration process. I am advised and verily believe that the mandate of the commission is to create a new database from the process and clearly Guyanese not resident in Guyana would not be generated in the new database,” the affidavit stated.

16 GROUNDS
Meanwhile, in his FDA filed in late August, Minister Williams had laid out 16 grounds on which the Chief Justice (ag) erred in her ruling on the national registration process.
In setting out the grounds for the appeal, the attorney general told the appellate court that the learned Trial Judge erred and was misconceived in law when she ruled that Article 159 (5) of the Constitution which addressed ‘the qualifying date’ is only applicable to persons 14 years or older for the purpose of registration as at October 31, and not all Guyanese citizens. According to him, the Chief Justice (ag) failed to apply any cannons of interpretation in arriving at her decision, adding that the matter was already fully ventilated and argued before the Caribbean Court of Justice (CCJ), and as such, was therefore Res Judicata.