Dear Editor,
It comes as no surprise to those of us who are waiting for the inevitable to see that the Elections Commission will take another month to conduct a recount and will not publicly broadcast that recount because, according to Commissioner Vincent Alexander, that would be against the law.
None of this is, of course, necessary because as we all know and have said over and over, the results of the elections are contained in the Statements of Poll which are already separately in the possession of the Chief Election Officer, the Returning Officers for each electoral district, and in the hands of Presiding Officers and Polling Agents from the political parties.
Simply releasing those Statements of Poll, which are public documents, would let us know the basis for a genuine declaration of results. Nothing prevents the Elections Com-mission from doing this. But, as we are here, a public broadcast will ensure that the recount is done transparently and, if it is not, we will all know why.
Were we all not aware of what is happening, we would find it strange that the Elections Commission has refused to permit a public broadcast of the recount. Transparency is the hallmark of free and fair elections and all normal electoral bodies usually want to show that they are acting transparently.
The strange excuse that the law does not permit a public broadcast of the recount is just that, an excuse. The Representation of the People Act provides for the maintenance of secrecy at the counting of votes but this does not explicitly apply to recounts and, in any event, the proposed recount is not being done under that Act but under the wide powers given to the Elections Commission by the Constitution to issue such instructions and take such action as will ensure fairness, impartiality and compliance with the law and the Constitution.
This power is distinct from the power to order a recount under the provisions of the Representation of the People Act. A recount under that Act was refused by Mr Mingo and, like his decision to declare results without complying with the provisions of that Act despite a Court order, that decision has not been rescinded by the Commission, although it has the power to do so.
If the recount is not being done under the provisions of the Representation of the People Act, where Mr Alexander no doubt found his excuse, then that Act does not apply to the recount. While the Elections Commission may utilise the procedures for recounts set out in the Representation of the People Act for convenience, the Constitution sets no limits to the wide powers given to the Commission to ensure fairness and impartiality.
If the Constitution authorises the Elections Commission to issue such instructions and take action to ensure fairness and impartiality but does not go on to specify barriers to those instructions and actions then we can safely presume that something reasonable which enhances democracy like a public broadcast of the recount is not only permitted but falls clearly within what the constitutional provision is meant to promote.
Even if there were some law that placed an obstacle in the way of publicly broadcasting a recount, that law would be subject to being declared void as being inconsistent with the Constitution since the Constitution specifically permits the Elections Commission to issue instructions and take action for fairness and impartiality.
In addition, as I am sure Mr Alexander knows, the Elections Commission has the power to amend any such a law to remove obstacles in its way while Parliament is dissolved.
In the 1950s an American judge said that “the attainment of true justice is over the highway of realities and not through the alley of technicalities”. Since Justice Saunders of the Caribbean Court of Justice found and quoted that aphorism in a 2007 Guyanese case, it has been the darling of lawyers and students.
Maybe we find it apt because situations so often arise here where it is applicable, such as this one where the Elections Commission is refusing to do something which would show fairness and impartiality while acting under a provision of the Constitution which specifically empowers it to take action to ensure fairness and impartiality.
The law is replete with authority that legislation must be interpreted in the public good and that the Constitution must be interpreted in a way which enhances democracy and a public broadcast of the recount clearly is in the public good and enhances democracy.
Even where the Constitution itself permits fundamental rights to be breached, like a provision which saves old laws from challenge, the Courts will interpret that part of the Constitution in a way that upholds rights rather than permit them to be breached.
A group of distinguished Guyanese recently demanded in these letter columns that the Elections Commission immediately restore their fundamental right to free and fair elections. I agree with them and endorse their sentiments.
Our Constitution tells us that we are entitled to the rights set out in a few International Human Rights Charters and among those rights is the right and opportunity of every citizen to take part in the conduct of public affairs, directly or through freely chosen representatives and to vote and be elected at genuine periodic elections guaranteeing the free expression of the will of the electors.
The Elections Commission is obliged to take every step necessary to uphold those rights and we must be able to see that happening. A public broadcast of the recount, despite all that has happened, would be a step in that direction.
Yours faithfully,
Kamal Ramkarran
