–AG tells appellate court as challenge into CJ’s decision to block removal of non-residents from NRR opens
By Svetlana Marshall
ATTORNEY GENERAL and Minister of Legal Affairs, Basil Williams, on Monday, argued that residency is a requirement when voting in Guyana as he challenged Chief Justice Roxane George-Wiltshire’s decision to block the removal of persons from the National Register of Registrants (NRR) Database, on the basis, that it is unconstitutional.
As arguments opened in the case brought against Chartered Accountant, Christopher Ram; the Guyana Elections Commission (GECOM); and the Chief Elections Officer (CEO), Keith Lowenfield in the Court of Appeal, the Attorney General told the panel of judges led by Chancellor of the Judiciary, Yonette Cummings-Edwards, that overseas voting was abolished in 1991.
In the partial appeal to the Chief Justice’s August 14, 2019 ruling, Williams, who was backed by Solicitor-General Nigel Hawke, told the appellate court that under the 1966 and 1970 Constitutions, residency was a requirement in order to be registered as an elector. Article 65 (1) in both Constitutions provided that: “No person shall vote at an election unless he is registered as an elector,” and (2) (a) “is a citizen of Guyana who is domiciled in Guyana or who is resident in Guyana and has been so resident for a period of one year immediately preceding the qualification date…” However, residency was removed from the 1980 Constitution as a result of the introduction of overseas voting by virtue of Act No. 16 of 1968 Laws of Guyana, The Representation of the People.
“The clear intent of this amendment, having recognized the impracticality of parallel rights, was to remove residency as a requirement from the 1980 Constitution to facilitate non-resident voting,” Minister Williams submitted to the court but was keen on noting that overseas voting was abolished in 1991. It was explained that the Elections Laws (Amendment) Act, 1991 removed non-resident voting or overseas voting in Guyana. Provisions were only made for diplomats, their families and staff of an embassy or high commission.
“What can be gleaned from the amendment is that Parliament abolished overseas voting and expressly made provision only for Ambassadors and High Commissioners, their wives and children, staff members of embassies and their family to vote outside of Guyana. The necessary and logical implication is that all other Guyanese citizens outside of Guyana could not vote unless they were resident in Guyana. Moreover, as a matter of historical context, in fact, there is no evidence that as of 1991, any person not resident in Guyana was allowed to vote overseas unless they fell into the legislative exception under the aforementioned provision,” the Attorney General told the appellate judges.
Arguing that the electoral changes were evident in the Carter Centre Report of 1990-1992, he submitted to the court that all other non- resident Guyanese Nationals cannot vote in General Elections in Guyana if they were not resident in Guyana and registered during the qualifying period.
“It is our respectful submission that the National Assembly showed its clear legislative intent as it relates to the restoration of Residency in the Guyana Constitution, when it introduced the Constitutional Amendment Bill No. 36 of 1991 in seeking to amend Article 159 of the Guyana Constitution,” he told the court, while emphasizing that residency was restored in the Constitution.
Pointing to the Explanatory Memorandum for Constitutional (Amendment) Bill No. 36 of 1991, the Attorney General told the appellate judges that it was clearly stated that, “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.” This, he posited, is outlined in Article 159.
Justice George-Wiltshire, in ruling on the House-to-House Registration case brought by Ram, had said that it would be unconstitutional for names of citizens of Guyana to be removed from the existing National Register of Registrants though they are not resident in Guyana but the Attorney General, on Monday, maintained that the Constitutional (Amendment) Bill of 1991, reinstituted the residency requirement.
“It is our respectful submission that the learned Chief Justice therefore fell into error by failing to address her mind to this particular amendment,” he told the appellate court.
In support of the arguments put forward by Williams, the Solicitor-General told the court that while the right to vote is an essential feature of the country’s democracy, it is not an absolute right. Hawke, who was brief in his delivery, emphasized that certain requirements must be met for one to vote in Guyana. “You could be resident in Guyana as a citizen of Guyana; you could be age 18 – meet those requirements but if you have not registered during the qualifying period you cannot still approach the courts and say, you have a fundamental right to vote, when in fact you have not met the requirements as outlined by our framers of the Article 159,” Hawke reasoned.
GECOM’s Attorney, Senior Counsel Stanley Marcus told the appellate court that the Chief Justice erred when she proceeded to consider and deliberate on an issue that was not raised in the Fixed Date Application (FDA) filed by Ram. Providing a number of supporting cases, Marcus argued that the removal of persons from the NRR Database was not a matter of contention and should not have been addressed by the court.
Ralph Ramkarran, who appeared on behalf of Christopher Ram in association with Anil Nandlall and others, pleaded with the court to decline jurisdiction in the matter. “I would respectfully submit that the course that this honourable court ought to adopt, having regard to the law which we face and the circumstances of this case, having started before the proclamation, is either, this court should decline jurisdiction in this matter or alternatively, even if the court comes to a conclusion in this matter, should decline to make any order,” Ramkarran submitted.
He said the Chief Justice’s decision, which was handed down prior to the proclamation, should stand. With a proclamation issued for General and Regional Elections to be held on March 2, Ramkarran told the court that the matter has now become an elections case, and as such, could only be determined by an Elections Commission. But Ramkarran failed to consider the fact that the case was brought before court since August, 2019, months ahead of the proclamation, and at a time when House-to-House Registration was still in progress. His colleague, Anil Nandlall, in rebutting the arguments made by Williams, told the court that residency is not a requirement for voting. Attorney-at-Law Roysdale Forde, who appeared on behalf of the Chief Elections Officer, and President of the Guyana Bar Association, Attorney-at-Law Teni Housty, who appeared Amicus Curiae, also made submissions in the case.
Justice George-Wiltshire, in handing down her decision in August, 2019, refused to grant a total of five declarations, which sought to nullified or invalidate the House-to-House Registration but ruled that it would be unconstitutional for names of citizens of Guyana to be removed from the existing National Register of Registrants albeit they are not resident in Guyana. The fundamental pillar upon which the ruling was founded was there was no law that made ‘residency’ a requirement for the purposes of House-to-House registration as envisaged by Article 159 (2) (c) of the Constitution of Guyana.
The Attorney General and Senior Counsel Marcus will give closing arguments on Wednesday before the three appellate Justices – Chancellor Yonette Cummings-Edwards; Justice Dawn Gregory and Justice Rishi Persaud.