… Court of Appeal rules, as AG signals move to CCJ

THE Court of Appeal on Monday ruled that residency is not a requirement for voting in Guyana, thereby upholding the 2019 decision of the High Court to block the removal of persons from the National Register of Registrants Data Base (NRDB), particularly those residing overseas.

The unanimous decision was handed down by a panel of three judges led by Chancellor of the Judiciary Yonette Cummings-Edwards. Attorney-General and Minister of Legal Affairs Basil Williams, who had filed the partial appeal in the case brought against Christopher Ram, the Chief Elections Officer, the Guyana Elections Commission (GECOM) and the Guyana Bar Association (Amicus Curiae), has vowed to challenge the ruling at Guyana’s highest court of appeal, the Caribbean Court of Justice (CCJ).

Justice Cummings-Edwards, in handing down the judgment before a packed court, said Articles 59 and 159 of the Constitution stipulate the qualification and disqualifications for electors. According to the Constitution, “To become eligible for voting, one must first be registered, but in doing so, he or she must be a citizen of Guyana, 18 years or older, or a citizen of the Commonwealth, who has been resident in the country for at least a year. A person certified to be insane or otherwise adjudged to be of unsound mind is not qualified to be registered, in addition to those who would have been convicted by a court of any offence connected with elections or found guilty of an offence by the High Court in proceedings under Article 163.”

Justice Cummings-Edwards said the Constitution is clear, and as such, there is no other requirement for registration and ultimately voting as an elector.

NOT A QUALIFICATION
“When one reads Article 59 together with Article 159, it is clear that additional residency is not a qualification to vote,” the Chancellor said. Justice Cummings-Edwards said that Chief Justice Roxane George-Wiltshire was correct in her decision.

“There is no need to introduce an additional requirement of residency, when residency has been established for registration process, which process would have led to the National Register and the subsequent List of Electors. Thus it is our finding that the provisions in Article 159 of the Constitution, being in absolute terms, do not import an additional requirement of residency for Guyanese citizens,” Justice Cummings-Edwards said, adding:
“A citizenship of a country must carry some privilege, and voting seems to be one of such privileges attached to the citizen.”

Justice of Appeal Rishi Persaud, in his deliberation, said that while Article 65 of the 1966 Constitution of Guyana and Article 65 of the 1970 Constitution of Guyana included residency as a requirement in order to be registered as an elector, Article 159 of the revised Constitution does not include such a requirement. “It was specifically removed,” he told the parties involved in the matter, explaining that the removal of the residency requirement was as a result of the changing historical, political and economic realities confronting Guyana at the time.

KEEN TO NOTE
Justice Persaud was keen on pointing out that by virtue of Article 159 (2) (b), the residency requirement for Commonwealth Citizens in Guyana was maintained, despite amendments to the Constitution. Article 159 states: “(2) Subject to the provisions of paragraphs (3) and (4), a person shall be qualified to be registered as an elector for elections if, and shall not be so qualified unless, on the qualifying date, he or she is of the age of eighteen years or upwards and either – (b) is a Commonwealth citizen who is not a citizen of Guyana and who is domiciled and resident in Guyana and has been so resident for a period of one year immediately preceding the qualifying date…”

On that basis, the Appellate Judge said it is clear that the issue of residency requirement did not escape the attention of the drafters of the Constitution, as posited by the Attorney-General.

In his bid to prove his case, the Attorney- General, backed by Solicitor-General Nigel Hawke and a battery of lawyers, had submitted to the Appellate Court that the residency requirement for voting in Guyana was reinstituted in 1991.

A NECESSARY REQUIREMENT
He had argued that by virtue of Constitution (Amendment) Act No. 4 of 1991, the residency requirement for voting in Guyana was reinstituted, and became a necessary requirement to qualify to be an elector. Article 159 2(a) of the Constitution, he maintained, was amended to include the residency requirement.

But Justice Persaud, in handing down the judgment, said the Attorney-General’s reliance on the Constitution (Amendment) Act No. 4 of 1991 was wholly misplaced and contentious. The arguments that were put forward, the judge emphasised, were fundamentally flawed.

“The Constitution (Amendment) Act No. 4 of 1991 must be viewed in the context of the ongoing electoral reforms, which preceded the 1992 National and Regional Elections in Guyana,” Justice Persaud said, while explaining that the Elections Constitution, between 1990 and 1992, was postponed as a result of a political agreement facilitated by a Carter Center Mission in Guyana at the time. It was noted that the Constitution (Amendment) Act No. 4 of 1991 came out of that reform process.

SUNSET LEGISLATION
Justice Persaud said that from all indications, the Act was not a permanent one as argued by the Attorney-General. On this note, the judge agreed with Ram’s Attorney, Anil Nandlall, that the Constitution (Amendment) Act No. 4 of 1991 was a sunset legislation, meaning that the measure within it ceased to have effect after a specific period. “It is clear, to my mind, that Act No. 4 was essentially and effectively a piece of ‘sunset legislation’. Such legislation, which has its origins in Roman law, has its purpose of allowing the legislature to institute a law when change, government action, or particular legal structure is required in a timely manner,” he explained.

The Appellate Judge noted that the provisions of a ‘sunset legislation’ are terminated at the expiration of a specified period. The Attorney-General had argued that there was no expiration date attached to the Constitution (Amendment) Act, but Justice Persaud ruled to the contrary. “To my mind, the Act served its purpose, and is no longer effectual or operational,” he said, while noting that the arguments put in favour of the appellate lack merit.

Justice Persaud also upheld the decision of the High Court that it would be unlawful to remove a registrant from the NRRDB, because he or she may not have been present during a House-to-House exercise. “Section 3 of the Elections Law Act provides for the process of registration of electors in their respective division. There is simply no provision for the exclusion of citizens who are residing overseas, or generally out of their district,” Justice Persaud said. He further explained that a person’s name could only be removed from the NRRDB, if he or she is no longer qualified to be on that list.

CALLS TO DECLINE JURISDICTION
Before addressing the substantive issue of residency, Justice Persaud had rejected calls made by Senior Counsel Ralph Ramkarran for the Appellate Court to decline jurisdiction and or delay judgment in the case, due to the upcoming General and Regional Elections. Ramkarran, on behalf of his client, Christopher Ram, had argued that the case should have been brought before the Court by way of an Election Petition, and not a Fixed Date Application (FDA).

However, it was explained that while Article 163 of the Constitution grants the High Court exclusive jurisdiction for the treatment of questions relative to the election of Members to the National Assembly, the FDA predated President David Granger’s proclamation for the holding of General and Regional Elections. Justice Persaud said that it was for that reason that he saw no reason why the Appellate Court should decline jurisdiction. The Chancellor had offered a similar line of reasoning.

“As a consequence, and perhaps more importantly, I see no impediment, constitutional jurisdiction, notional or otherwise to this court engaging in its statutory duty pursuant to the provisions of the Court of Appeal Act,” the Appellate Judge said as he declined to accede to the calls made by Ramkarran.

FULLY ENDORSED
Justice Dawn Gregory, who formed part of the panel of three judges, fully endorsed the decision of both Justice Persaud and the Chancellor, Justice Cummings-Edwards.
Notably, Anne Marlborough, a Legal Analyst attached to the Carter Center, an International Election Observation Mission, was among diplomats present during the delivery of the judgment. Retired Justice Cecil Kennard was also present.

Meanwhile, outside of the Court of Appeal, the Attorney-General made it known that Monday’s ruling will be challenged at the CCJ. He said that removing residency as a requirement would result in a bloated NRRDB, and by extension a bloated List of Electors. “Why would you introduce the 1991 Constitution (Amendment) Act, and include residency. If it was good then, why it is not good now. Once registered; always registered. It means by the next election, the list will be greater than the population,” the Attorney-General said as he held fast to his position that the amended Constitution was not a ‘sunset legislation’.