Attorney General (AG) Basil Williams yesterday morning reiterated previously advanced arguments that Guyanese outside of Guyana, whether residing or otherwise, cannot be allowed to vote unless they are resident in Guyana at the qualifying date of registration.
Williams was at the time presenting submissions before the Court of Appeal in the state’s challenge to last year’s ruling by acting Chief Justice Roxane George-Wiltshire that existing registrants cannot be excised from a new voters’ list unless they are deceased or otherwise disqualified in accordance with the constitution.
In an action filed before the High Court by attorney Christopher Ram, who was challenging the legality of the house-to-house registration embarked upon by the Guyana Elections Commission (GECOM), Justice George-Wiltshire had ruled that the exercise was constitutional.
Contrary to the position held by the state, however, the chief justice declared that existing registrants cannot be excised from a new voters’ list unless they are deceased or otherwise disqualified under Article 159 (2), (3) or (4).
Article 159 (2) (c) provides for a person to be qualified to be registered if they are 18 at the qualifying date and “satisfies such other qualifications as may be prescribed by or under any other law”.
At yesterday’s hearing, Senior Counsel Ralph Ramkarran, one of Ram’s attorneys, urged the appellate court not to interfere with the chief justice’s ruling. He noted that the court would be hard-pressed at this juncture to make such a decision, signaling the preparations already in train for general and regional elections which are just around the corner.
Similar sentiments were also expressed by counsel for Ram, Anil Nandlall, who said that there could be consequences if the court were to overturn the chief justice’s ruling, especially given all the investments for the already set March 2nd polls.
Fundamental requirement
Arguing on behalf of the state, however, the attorney general strongly maintained his position that the residency requirement is fundamental for voting in the general and regional elections.
He said that the state has no difficulty in recognising a person’s right to vote, which it completely acknowledges, but posits that, that person must first be qualified to vote.
In support of this point, Solicitor General Nigel Hawke said that there is no “inherent fundamental right to vote” and that there are specific requirements which every voter must first satisfy in order to vote.
Against this background, he said that one must first be a qualified elector, and one such qualification is “residency,” at the qualifying date of registration.
Williams said that there was no residency requirement in the 1966 constitution and that overseas voting was introduced in 1968, but that this was abolished in 1991 with the intervention of former United States President Jimmy Carter and the Carter Center.
He said that Carter’s intervention brought the elections law amendment Act of 1991, removing overseas voting, and that save for local overseas dignitary missions, such as ambassadors and the like, Guyanese not resident in Guyana and registered at the qualifying date for registration could not vote.
On this point, he noted that the residency requirement was restored for voting. According to Williams, the Chief Justice fell into error by failing to direct her mind to this particular amendment.
He said that the residency requirement for citizens to vote forms part of the constitution, as only Guyanese citizens resident in Guyana should be allowed to vote as envisioned by the Constitution Reform Committee.
Williams advanced that Guyanese not resident in Guyana would not be generated in the database containing the registrants to vote.
According to him, it could not be as the respondents are contending that once registered, one is always registered. The AG said that there is need at times for the list to be sanitised to ensure credible elections as the current one was bloated with some 661,000 persons, including the deceased and persons who would have migrated, especially given that the entire population is just over 700,000.
Williams said that the residency requirement allows for voters to be registered in their respective districts and divisions in Guyana and not in “Brooklyn, London or Canada,” as this he said could result in “logistical nightmare.”
For this reason, he argued that it could not be the intention of the framers of the constitution that once registered, you are always registered even if someone has migrated, and noting that the list therefore has to be updated.
Asked by Justice Dawn Gregory what is meant by “residency,” and what happens in the case where a citizen may be taking advantage in working in another Caribbean territory through the Caricom Single Market and Economy (CSME), Williams said that the onus would be on that person to return to Guyana and be registered by the qualifying date, if they are desirous of voting.
“You have to be here (Guyana). You need to have an address here and be registered in your division/district or area,” the AG declared.
Asked by the court, in the same vein, Williams said that they are not removing anyone’s name from the list, but that rather GECOM’s exercise was to have a new register of registrants list compiled without which can be a “recipe for all kinds of things.”
Intention to reside
Dismissing the state’s arguments, however, Senior Counsel Ramkarran said that residency is required for registration and not voting. He said that in fact, overseas voting was never abolished, but rather it has not been activated.
“So I don’t know where the AG got that information from,” Ramkarran questioned.
He opined that the battery of lawyers in the courtroom may have been too young and thus unaware of the historical development of the law in this area, but explained that what parliament took to mean as domicile in 1968, was the “intention to reside in Guyana,” though one may have been overseas for whatever reason; and so outside vote was facilitated through this he said.
According to Ramkarran, there is no law requiring residency as a precondition for voting, and even if this was the case he said, it would have to be subject to the constitution.
Noting the consequences which are likely to flow if the chief justice’s ruling were to be overturned, especially given that elections are imminent, Ramkarran asked the court not to interfere with that decision.
As a matter of fact, he asked the appellate judges to decline jurisdiction, advancing that the issues raised by the state ought to be the subject of an elections petition, which would have to come after the elections are held on March 2nd.
In the alternative, he asked the court not to make any orders.
Attorney Roysdale Forde, who represents the Chief Election Officer, argued, however, that the challenge cannot be brought by elections petition, since it commenced before the president issued the proclamation for elections.
As a result, he said if the appellate court does not adjudicate on the issues, it may well be viewed as shirking its responsibility.
Asking the court to also not interfere with the chief justice’s ruling, Nandlall said that there is absolutely no requirement of residency for voting, while arguing that the framers of the constitution never so intended.
He said that what was provided for was a one-year residency requirement for ambassadors, and said that he could not see how the AG could be confused and misguided.
The case continues tomorrow afternoon at 1.30 before Chancellor Cummings-Edwards and Justices of Appeal Gregory and Rishi Persaud.
