OPINION: UNRULY HORSE: Why the procrastination?

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By Mohabir Anil Nandlall MP, Attorney-at-Law

On paper, retired Justice Claudette Singh is as qualified and suitable as any, for the appointment as the Chairperson of the Guyana Elections Commission (GECOM). I personally witnessed her taking the Oath of Office. I heard her pledge that “… I will faithfully execute the office of the Chairperson of the Guyana Elections Commission without fear or favour, affection or ill will and that in the execution of the functions of that office, I will honour, uphold and preserve the Constitution of the Co-operative Republic of Guyana.” In a Facebook post, I stated that all I expect is the faithful discharge of that oath, nothing less and nothing more. I cannot imagine any rationale Guyanese harbouring a different expectation.

Perhaps with the exception of the former Chief Justice, Ian Chang SC, I do not think that there is another Judge in Guyana who have delivered more written judgements on matters touching and concerning the Constitution over the past three decades, than Justice Singh. Justice Singh bears the distinction of being the only Judge in post-independent Guyana to have conducted a fully blown trial, in respect of an elections petition, culminating in both an expansive written judgement, as well as consequential orders, which included, fixing a timeframe within which Regional and General Elections must be held: See the elections petition filed by Esther Pereira: A challenge to the 1997 Regional and General Elections. In that trial, Justice Singh had the opportunity of forensically examining and analyzing Guyana’s electoral machinery at work, from the start to the end and all the legislative and constitutional provisions attendant thereto.

Justice Singh took the Oath of Office on the 30th July 2019, and having regard to the current constitutional exigencies, I am compelled to express my disappointment that the first meeting of the full Commission is scheduled to take place over two weeks hence.

I must make it clear that the legal proceeding filed by Christopher Ram, pending before the Chief Justice (ag), cannot and does not affect or impede the Commission from meeting and discharging its constitutional mandate, having regard to the consequential orders of the Caribbean Court of Justice (CCJ). In all the attempts to distort, misinterpret and misrepresent what those consequential orders are, no one can dispute that the CCJ said “… f) Upon the passage of this motion of no confidence in the Government, the clear provisions of Article 106 immediately became engaged;” and that all the actors, including GECOM, are bound by the Constitution and must obey it. With her vast experience, undoubted judicial erudition and axiomatic forensic legal acumen, Justice Claudette Singh needs no assistance in appreciating the judgement and consequential orders of the CCJ, their implications, and the relevant provisions of the Constitution. She is capable than most of so doing.

I must emphasize that the proceeding instituted by Ram, were done at a time when there was no Chairman of GECOM. But yet, the Chief Elections Officer choose, on the 20th July 2019, to begin the execution of an order of the erstwhile Chairman, which was clearly overtaken by the consequential orders rendered on the 12th July 2019, by the CCJ. I cannot imagine that the learned Chief Justice will make any decision that will detract from, defy, frustrate or undermine the clear prescriptions of the CCJ. GECOM can, lawfully, do no different, either. So, why the procrastination? Of course, the decision of the Chief Justice scheduled to be delivered on the 14th August 2019, ought to add further guidance on the matter. However, awaiting the same cannot be the basis of non-action.

The fundamental truth is that the consequential orders of the CCJ will not change, nor lose their efficacy; neither will the clear language of Article 106 (6) and (7). They aggregate in mandating elections to be held by the 18th September 2019. GECOM has one of two clear courses of action open to it. Firstly, to proceed with the current house-to-house exercise, or secondly, to refresh the last valid Official List of Electors with a claims and objections exercise and use same for the purpose of holding an elections.

As regards the former, following GECOM’s own ‘Work Plan’, it will result in elections being held sometime in June 2020, earliest. This will not only render the No-Confidence Motion passed nugatory, but will violently collide with the consequential orders of the CCJ and the clear language of Article 106 (6) and (7) of the Constitution, rendering the process unconstitutional. Additionally, the legality of the process itself and the contention that it will result in the deprivation of tens of thousands of qualified Guyanese of their right to vote, are all live issues to be determined by the CJ. The matter is further compounded by the main political party’s supporters boycotting the process, which will result in half of the electorate being excluded from any list that the exercise may eventually generate.

The above mentioned factors will clearly provide formidable basis to challenge the legal validity of any elections held in those circumstances, not to mention the social disorder that such an election may excite.

In relation to the latter, the list to be used is a list under which the current Government won a majority in the 10th Parliament at the 2011 elections, then won the Government at the 2015 elections and the same list was used, successfully, for two Local Government Elections, held under its tenure, without a single serious allegation ever being made against its integrity, until after the No-Confidence Motion was passed. Concomitantly, the legal advisor of GECOM advised that the list can be used, once it is refreshed with a claims and objections exercise and she further advised that to proceed with house-to-house registration, will run afoul of the CCJ ruling and the Constitution. Lastly, the Chief Elections Officer, himself, disclosed to the press, a week ago, that the list is not “bloated” and can be used for the next elections, after a claims and objections exercise, which will allow for all those who are not on the list, to get their names thereon.

I cannot conceive of any difficulty in GECOM determining, to which option it will resort, in the circumstances.

For the avoidance of doubt, the views expressed above are mine and not those of the People’s Progressive Party/Civic (PPP/C).