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OPINION: House-to-house de-registration unconstitutional

By Attorney-at-Law Anil Nandlall

It is now public knowledge that without the support of the People’s Progressive Party (PPP)-nominated Guyana Elections Commission (GECOM) Commissioners, GECOM is moving to house-to-house registration. It is also public knowledge that this decision of GECOM is a direct response to a call from Congress Place. I feel impelled to reiterate that since his appointment, the Chairman of GECOM has concurred, by use of his casting vote when necessary, with every position advocated by Congress Place and the Government-nominated GECOM Commissioners.

The move to house-to-house registration is said to be predicated upon the ground that the Voters’ List is “bloated” with dead persons and persons who have migrated. The reason proffered for this proposed exercise is to sanitise the list of these two categories of occupants.

It cannot be disputed that the List can be cleansed of dead persons by a simple engagement between the Chief Elections Officer and the Office of the Registrar General. Such an engagement of comparing the relevant data and making the adjustments can be accomplished with relative ease within a fortnight. Naturally, this does not require the tedious, expansive and anachronistic methodology of a house-to-house inspection – a process to which there is rarely resort in this technological age, elsewhere.

However, it is the decision to resort to house-to-house registration with the express intention of removing persons from the List, who maybe out of Guyana, that agitates my apprehension. In my considered view, such an exercise is fraught with hazards, including, the violation of the Constitution and the constitutional rights of qualified electors to vote and creating the potential for a subsequent vitiation of the entire elections.

A convenient point to begin is perhaps Article 59 of the Constitution. It provides thus: “Subject to the provisions of article 159, every person may vote at an election if he or she is of age eighteen years or upwards and is either a citizen of Guyana or a Commonwealth citizen domiciled and resident in Guyana.”

Article 159 provides that no one shall vote at an election unless he is registered as an elector and a person shall be qualified to be so registered, if on the qualifying day, that person is eighteen years and over and a citizen of Guyana or, a Commonwealth citizen, who is domiciled and resident in Guyana for a period of one year immediately preceding the qualifying date.

The bewildering construction recently placed on the Constitution, notwithstanding, it is excruciatingly clear that neither residency nor domicile within the State of Guyana are qualifications, which a citizen of Guyana must possess before he is eligible to vote or to be registered as an elector. The natural corollary is the lack of residency and domicile within the State of Guyana cannot be the basis for disqualifying a person from being registered or from voting.

In short, a Guyanese, residing either permanently or temporarily in Timbuktu, once he or she is eighteen years and over is qualified to be registered and, if registered, is qualified to vote. At this juncture, it is apposite that I emphasize that by acquiring citizenship of another country, a Guyanese citizen, does not necessarily lose his/her Guyanese citizenship. He/she remains a citizen of Guyana and, therefore, qualifies to be registered and, if registered, qualifies to vote. So, while dual citizens are disqualified from being elected, they are not disqualified from being electors.

GECOM is now proceeding on a house-to-house registration to create a new List of National Registrants from which the Preliminary Voters’ List will be extracted and this is being done with the stated intention of excluding persons, who will be absent from Guyana during the exercise. Consequently, those persons who are currently duly registered and are on the List but absent from Guyana are now going to be intentionally excluded from the List in this proposed process, as this is one of the stated purposes of this exercise. In other words, these persons are going to be de-registered and thereby disqualified from voting and denied their constitutional right to vote, through no fault of theirs.

The ultimate consequence of this decision of GECOM is that GECOM is, indirectly, adding a new qualifying requirement to vote, which is not provided for by the Constitution, and which is ultra vires the Constitution: that requirement is “residency within Guyana.” This is clearly unlawful and unconstitutional.

It is this identical issue which formed the basis of Justice Claudette Singh’s decision vitiating the 1997 elections. The Judge found that the Election Laws Amendment Acts No. 12 of 1996 and No. 22 of 1997 were unconstitutional and void, in that they sought to add to the qualifications or disqualifications of electors prescribed by articles 59 and 159 of the Constitution by imposing the requirement of a Voter ID card.

Her Honour, cited the dictum of Hamilton J in the case of Greidlinger v Davis 9887 Fed. 2d 1344 (4th Cir 1993):

It is axiomatic that no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

And then Justice Singh observed thus:

It becomes clear then, that any prohibition, restriction or limitation on the right to vote must be viewed with a close and critical eye since any such encroachment would be a bar to that voter’s right to have a voice in the elections of his representatives in government.

In Reynolds v Sims 377 US 554 at 1378, Chief Justice Warren posits:

It has been repeatedly recognised that all qualified voters have a constitutionally protected right to vote.

Approving, this dictum Justice Singh held that in Guyana the right to vote of a qualified elector is a constitutionally protected right. Moreover, in Krammer v Union School District 395 US 627 at 1889, Chief Justice Warren’s criticisms of statutes denying the right to vote are apposite:

Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. Thus, state apportionment statutes, which may dilute the effectiveness of some citizens’ votes, receive close scrutiny from this Court – No less rigid an examination is applicable to statutes denying the franchise to citizens who are otherwise qualified by residence or age.

It is submitted that although Chief Justice Warren’s objections were directed to statutes his admonitions apply with equal force to actions, decisions and processes that have like, similar or identical consequences on the right to vote. In the Esther Perriera case Justice Claudette Singh examined the two pieces of legislation to determine the “pith and substance” of their effect and found that “The constitutional right to vote would be denied to any person who did not produce such a card” but who would otherwise have been qualified to vote under the Constitution.

Reverting to the situation at hand: there are thousands of citizens of Guyana, 18 years and over, who are currently registered and therefore, qualified to vote (which as the legal authorities cited above established is a constitutional right) and who intends to vote at the next elections; however, these persons are overseas and plan to return home to vote when the date for elections are fixed; the decision of GECOM to embark upon a house-to-house registration which will result in a new voter’s list will exclude those persons if they are not present in Guyana. As a result, this exercise by GECOM will, therefore, disqualify these persons since they would be excluded from the new list, thereby depriving them of a constitutional right to vote, which they now enjoy ,without any fault of theirs, as it cannot be doubted that the “pith and substance” of this exercise is to cleanse the list of these persons who are currently qualified to vote. This, I submit must be unconstitutional.

Speaking of the agreement between all the parties in Parliament to the use of the Voter’s ID card which consequently led to the unanimous passage of the two pieces of legislation referred to above, Justice Claudette Singh issued the following exhortation:

It follows therefore, that no political party can arrogate unto itself the power to barter away or waive the constitutional right of members of the electorate. The voice of members of the electorate to speak through the ballot cannot be silenced by arrogant agreements among political parties. Even Parliament cannot do so since the voice of members of the electorate to speak through the ballot is a constitutional right under Article 59.

If the political parties nor even Parliament can do it by ordinary legislation, GECOM certainly cannot do it by house-to-house registration!

Mr. Anil Nandlall is a former Attorney General and Minister of Legal Affairs of Guyana. He is also an executive member of the opposition People’s  Progressive Party.