In our residency cases, the Courts ignored the intention of the legislature and the interpretation of executing agencies

Apr 15, 2025 Letters

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Dear Editor

In the case filed by Christopher Ram to block the 2019 house-to-house registration exercise, Justice George ruled (at paragraph 145 of her decision) that “Residency … is only important in the context of identifying where one would be registered to vote, that is to say, for a determination of one’s polling place or station.”  She concluded therefore that residency was purely for crowd management and was not an additional qualification to become an elector as permitted under Article 159(2)(c) of Guyana’s constitution. Moreover, in her latest decision in the Carol Smith-Joseph case, she ruled that even for this particular management task, GECOM is not authorized to verify that you live where you say you live. GECOM must assign you to a polling place based only on the address you provide (even if you do not live there). This ruling, as she herself conceded, has rendered our election laws absurd.

But, in this letter, I am mostly concerned with the reasoning behind the judge’s ruling on residency in the 2019 Ram case, now having more thoroughly reviewed the written decision. I gather from her explanation that, first, the references to residency in our electoral laws lack the fulness or completeness found in similar legislation in some Caribbean countries – which, for example, spells out the number of years a person must reside in the country immediately before the qualifying date. The absence of such details in our residency laws, the Judge concluded, was of great significance; it meant that our laws did not belong to that class and were differently intended.   Residency qualification laws, the Judge seemed to be telling us, must be written in a certain prescribed manner to claim their existence. If not, we are not just dealing with bad legal drafting. Instead, we have a situation where they lose their entire essence and become something else. In this case, they become polling station allocation rules.

What strikes me as missing from this explanation are (i) the long-standing intention of our parliament (the maker and writer of the residency laws), (ii) the understanding of GECOM and the National Registration Centre (the State agencies responsible for implementing the laws), and the deference courts should accord to their interpretation, and (iii) the previous interpretations of our Courts themselves. All three missing elements (despite the stated lack of resemblance to typical Caribbean residency laws) pointed to the undisputed acceptance of our residency laws not only for polling station allocation, but also as a qualification a voter must possess. To reverse this established order would take more than an abstract argument based on the terseness of our residency laws.

Secondly, I gather from her ruling that the Canadian case Frank & Duong v Attorney-General of Canada [2019], which she referenced, appeared to influence her in the direction that no residency requirement is a good thing in and of itself.  In that case, the Supreme Court of Canada ruled that non-residents may vote no matter how long they have lived outside of Canada. Tellingly, the several examples from the Caribbean that the Judge cited showed that several other countries do not share Canada’s open house approach.

It is paradoxical that the brevity with which the Guyana residency laws are written (without any stated obligation to disclose where you lived and for how long prior to the qualifying date) produces an outcome similar to Canada’s. An overseas Guyanese can fly in any time before an election and register and vote. So, the absence of the expected wording in our residency laws may be exactly what our political stakeholders and lawmakers intended.

Thirdly, Judge George in her 2019 decision, understandably fussed about the possible disenfranchisement that fresh H2H registration or verification could produce should residency be an additional qualification to vote. Yes, re-registration places some onus on registrants, which in and of itself could be accepted once a greater good is achieved (as it normally is).  In the recent past, we have had such exercises in 1997, 2001 and 2008. Did the feared disenfranchisement occur? The extremely high registration and voter turnout numbers suggest not. In any event, it would have been useful for the judge to have sought evidence from GECOM if, as she thought, the matter carried importance.

Courts are encouraged to interpret a statute in a way that avoids raising constitutional problems or producing absurd results. Our two local courts have interpreted our election laws in a manner that undermines constitutional design, representative democracy, local government, electoral integrity, and public confidence. In this regard, a recent letter by Vincent Alexander should be required reading. Had they respected the intentions of our parliament and the established interpretation of our election and registration agencies – instead of their own belief of what residency qualification legislation should look like– the country would not face the prospect of having one of its most contentious elections ever.

Sincerely,

Sherwood Lowe 

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