High Court asked to declare political parties perform State action by picking candidates for general elections

Last Updated on Monday, 18 November 2024, 5:05 by Denis Chabrol

Mr Brian Collison

The Guyana High Court is next month expected to rule on whether political parties perform State action because they internally select candidates for elections in the country.

“Because the State has outsourced the process of nominating candidates for elections solely to political parties, the process by which the PNC(People’s National Congress)  and PPP (People’s Progressive Party) nominate and determine candidates for national elections constitutes an act of State,” states the applicant, PNCR member, Brian Collison through his lawyer, Dr Vivian Williams.

Dr Williams explained that the applicant seeks a determination, based on  established precedents that the sliver of functions delegated to political parties by the State and performed by political parties with respect to elections , constitutes state action that must attract strict constitutional scrutiny.

He said Mr Collison was not asking the court to declare that political parties are organs of the state, but that they perform State functions.

The respondents are the Attorney General; Mr  Aubrey Norton as PNCR Leader, and Mr Bharrat Jagdeo as General Secretary of the People’s Progressive Party (PPP). Dr Williams said Mr Jagdeo and Mr Norton have failed to appear and file an answer and so the allegations specific to them are deemed admitted.

The Attorney General Anil Nandlall, who is represented by Solicitor General Nigel Hawke and a team of lawyers, and Mr Collison are at odds over the State’s assertion that the Companies Act is the only legislation that could be used to govern the conduct of political parties which are historically unincorporated associations. “The Companies Act Cap 89:01 provides the regime and procedure under which an entity may enjoy legal personality. Respectfully, this Honourable Court cannot be invited to impugn the operations of Parliament by making declarations contrary to the word and spirit of the legislation,” the Attorney General states.

In response, Mr Collison contends that the proposition that the Companies Act is the exclusive regime by which entities are created is “wholly misconceived”, adding that even that law is limited to the formation of entities for trade or business for gain. “Political parties are not of the same species as commercial entities and therefore were not within the contemplation of the legislature when it enacted the Companies Act. The Applicant submits that it was the considered intention of Parliament to exclude political parties from legal frameworks such as the Companies Act,” according to Mr Collison.

The PNCR member said a primary issue before the court is whether political parties are entities recognised by the Constitution such that they can sue and be sued in their own names, hold property, assume contractual obligations, and enforce rights in their own names. “This and every other issue presented in this case require interpretation of the Constitution,” he said through his lawyer. Rebutting this point, the Attorney General said the court does not have an inherent jurisdiction to declare political parties’ legal persons without the legal sanction of the Parliament. “Parliament has to legislate and the court cannot arrogate onto itself the function of the legislature.”

Mr Collison has filed a separate case against the PNCR challenging the legitimacy of that party’s process that was used to prepare for its Biennial Delegates Congress held  this year to elect a leader and other members of the Executive. many of whom are highly likely to be on the PNCR’s ticket for the 2025 general and regional elections.

But the PNCR member, through his lawyer, is asking the High Court to deny the Attorney General’s application for the case to be thrown out, insisting that political parties engage in State action specifically as it relates to elections. “The State, through the Constitution, delegates to political parties, the authority and function to exclusively determine candidates who appear on election choices from which Guyanese may exercise their right to elect representatives,” he said.

In that regard, the Solicitor General and his legal team said in their submission that Mr Collison seeks these declarations on
issues that are moot and academic. Mr Hawke said Parliament has already “built in procedures that are fair for the elections process through the Guyana Elections Commission and the various electoral laws.”

The State has asked the High Court to dismiss Mr Collison’s application on several points including one that the High Court was being asked to amend Guyana’s Constitution which would amount to a violation of the separation of powers between the judiciary and the legislature.

The Attorney General, through Mr Hawke, acknowledged that  that political parties in Guyana have no legal regime. “They are quintessentially unincorporated associations having no legal personality.” He said the High Court could not be asked to confer any status “in any capacity”.

Several sister Commonwealth countries have Political Parties Acts. They include the United Kingdom,  Kenya, Tanzania and Fiji.