In her judgment on the recent challenge to the legality of the house-to-house registration exercise that was mounted by lawyer Christopher Ram, Chief Justice Roxane George made an order that would make it unconstitutional to remove persons from the voters’ list unless they are dead or otherwise disqualified in accordance with Article 159 (2), (3) and (4) of the Constitution.
However, Attorney General Basil Williams is partially appealing the judgment of the Chief Justice. Specifically, Williams has taken issue with Justice George ruling on the issue of persons being removed from the list because it was not an order that was sought by Ram. In fact, Williams is arguing that by doing this, the Chief Justice erred and misdirected herself in law.
In a Notice of Appeal, Williams list Ram; Chief Elections Officer (CEO), Keith Lowenfield and the Commissioner of National Registration as the Respondents. He contends that Justice George erred and was misconceived in law in finding that Article 159 (5) of the Constitution which addresses the ‘qualifying date’ is only applicable to persons 14 years or older for purposes of registration as at October 31, and not all Guyanese citizens.
It is his view that the Chief Justice failed to apply any cannons of interpretation in order to arrive at such a conclusion. According to the Attorney General, Justice George erred in law when she failed to appreciate that the issue of house-to-house registration and what register should be used for elections and the qualifying date were fully ventilated at the Caribbean Court of Justice (CCJ).
“The learned Trial Judge erred and was misconceived in law in finding that there is no law or laws in Guyana which set out additional requirements more particularly residence for purposes of Article 159 (2) ( c ) of the Constitution by failing to properly address her mind to Sections 6 of the National Registration Act, Chapter 19:08 Laws of Guyana.”
Contending that the Chief Justice once again erred in law, Williams argues that she failed to properly construe Section Six of the National Registration Act, Chapter 19:08 in order to find that residency is a requirement of the Act for the purposes of registration during the period of the ‘qualifying date.’
“The learned Trial Judge erred and was misconceived in law in finding that it would be unconstitutional to remove persons from the list who had previously been on the list but was not registered during house-to-house registration period because of non-residency in Guyana. The learned Trial Judge erred and was misconceived in law by breaching the separation of powers doctrine where parliament clearly provided in Section 6 of National Registration Act, Chapter 19:08 Laws of Guyana for residency during house-to- house registration as at the ‘qualifying date’.”
According to Williams, there was no evidence which established that there was a breach of the Constitution, the National Registration Act or any other law, and rather the evidence was consistent with the fact that GECOM acted in accordance with Article 159 (2) (c), 159 (5) and 162 of the Constitution.
Williams, therefore, argues that, “(Justice George) erred and was misconceived in law when she breached the separation of powers doctrine by purporting to issue instructions to GECOM, a Constitutional independent actor to not remove persons who are presently registered from the current National Register of Registrants (NRR) but who are not registered under new house-to-house registration from the current National Register of Registrants.”
“The learned Trial Judge erred and was misconceived in law when she failed to appreciate that pursuant to Article 159 (5) of the Constitution and Sections 6 and 9 of the National Registration Act Chapter 19: 08, GECOM had embarked on compiling a new National Register of Registrants (NRR) which effectively replaces the current.”
Among other things, he says that Justice George erred in law and misdirected herself on the evidence as a whole. Last week, Thursday, Justice George ruled that there was nothing unconstitutional about the current house-to-house registration exercise. In fact, she held that GECOM has acted within the remit of the powers invested to it under the laws, and that the court would only intervene if the elections body was found to be doing otherwise.
The Court of Appeal is yet to fix a date for hearing this matter.
Only Friday, Justice George dismissed an application by Lenox Shuman, Leader of the Justice and Liberty Party who was challenging the validity of the order for the commencement of house-to-house registration which was issued by then GECOM chairman Justice James Patterson. Shuman had contended that the order which was issued on June 11 was invalid on the basis that Patterson’s appointment was deemed unconstitutional by the CCJ.
However, Justice George ruled that this was not the case, and that the order was made at a time when Patterson was carrying out functions as chairman of the electoral body and that his acts were saved by the de factor doctrine. The de facto doctrine is used to characterize an officer, a government, a past action, or state of affairs that must be accepted for all practicable purposes, but is illegal or illegitimate.
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