An application filed by Lenox Shuman, Leader of the Justice and Liberty Party, which is challenging the validity of an order made by Former chairman of the Guyana Elections Commission (GEOCM) for house-to-house registration to commence on July 20, has been fixed for ruling on August 23 by Chief Justice Roxane George.
During the application which was heard yesterday, Shuman’s lawyer, Sanjeev Datadin, insisted that the June 11 order which was published in the Official Gazette is void since it only came into effect on July 20, and by then the Caribbean Court of Justice (CCJ) had already declared that Patterson’s unilateral appointment was unconstitutional.
Patterson’s appointment was affirmed void on June 18 by the regional court.
According to Datadin, the order states that house-to-house registration is prescribed to last until October 20. The lawyer contended that since Patterson’s appointment was deemed void by the regional court, everything done under his hand can also be rendered void. Datadin also argues that the setting of the date was among other things, unlawful and made in bad faith.
In fact, Datadin held that the de facto doctrine does not apply in this case.
The de facto doctrine is used to characterise an officer, a government, a past action, or state of affairs that must be accepted for all practicable purposes, but is illegal or illegitimate.
GECOM’s lawyer Roysdale Forde, however, argued that such doctrine applies to this case since at the time the order was made Patterson was functioning as Chairman of the Commission.
Both lawyers advanced several case laws to support their point. Solicitor General Nigel Hawke, who appeared for Attorney General Basil Williams, maintained that the order issued by Patterson is not void and is in compliance with Article 159 (2) and (3), Articles 162 (1) and (2) of the Constitution as well as the relevant sections of the National Registration Act.
Hawke said, “The Commission acted within its constitutional remit.” Further, Datadin contended that the decision by GECOM to conduct house-to-house registration, a process that will run beyond the September 18 timeframe for elections is totalling unreasonable. To support this argument, the lawyer stated that Patterson was very well aware that his appointment was the subject of an application before the CCJ.
That aside, Datadin said that Patterson should have been prepared for the eventuality that the court might not rule in his favour and stayed clear of issuing such an order. He respectfully submitted that in making the order, the former elections Chairman failed to consider the possible determination that elections have to be held within three months of June 18 in keeping with Article 106 (7).
It is Datadin’s interpretation of the CCJ’s ruling that elections are to be held on or before September 18.
In his response, Forde told the court that Datadin supplied no evidence to convince the court that Patterson failed to take these factors into consideration. According to him, the CCJ made no determination on a timeframe for when elections are to be conducted.
Relying on specific paragraphs of the court’s judgment, Forde emphasized that the CCJ held that the matter is now at a stage where the political actors have to return to Parliament to extend the timeframe for holding elections as is also prescribed in Article 106 (7). For this reason, Hawke added the CCJ said it expects the political actors to act with a certain level of integrity.
Given that the No-Confidence Motion was passed since December 21, 2018, elections were due by March 21. But owing to the lengthy litigation process that timeframe was not met. The CCJ only affirmed that the motion was properly carried in its ruling, which was also dated June 18. For most part, Hawke adopted the submissions made by Forde as it relates to the de facto doctrine.
Moreover, Datadin argued that there is no law, which stipulates that house-to-house registration must take place to obtain an Official List of Electors (OLE) for the holding of credible elections.
In fact, Shuman’s lawyer held that there has not been house-to-house registration in Guyana since 2008 although there have been valid lists produced for general elections in 2011, 2015 and for local government elections in 2018.
Hawke debunked this position. He stated that GECOM in acting within its constitutional remit has decided that in this particular case house-to-house registration is the only rational, reasonable and fair process to create a new OLE. In responding to Datadin’s submission that GECOM acted in bad faith by embarking on the house-to-house registration process, Hawke agreed with Forde that there was no evidence to substantiate this allegation.
Citing a judgment by CCJ’s President Adrian Saunders, Hawke contended that “concrete evidence” is needed to prove the allegation, and as it is, there is nothing particularised that GECOM acted in such manner.
Shuman, in press release, had stated that Chief Election Officer Keith Lowenfield was quoted in the media saying that the OLE can be sanitised by a simple claims and objections exercise.
According to the Presidential candidate, at any given time, there are between 30,000 and 50,000 Amerindians working in various parts of the mining and logging sector that will be denied their right to vote by the house-to-house registration process.
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