No nexus between ID card and right to vote

Dear Editor,

Every week that passes, sees the Guyana Elections Commission (GECOM) dropping a new bombshell on the country. That these “decisions” are made at meetings presided over by a former Judge with over 25 years standing in both the High Court and the Guyana Court of Appeal, and who rendered an erudite written Judgment in perhaps the only Election Petition that concluded after a trial in Guyana, makes it even more bewildering.

Tuesday evening (29th October 2019), the mainstream media reported the shocking disclosure that GECOM has “decided” that the names of persons who failed to uplift their Identification (ID) Cards since 2008, will not be included on the Official List of Electors for the 2nd March 2020, National and Regional Elections! Understandably, these reports have precipitated great public disquiet. The Guyanese public, by now, must be one of the most educated in the Caribbean on elections matter, having had to endure one electoral controversy after another, over the past three decades. The way things are shaping up, the March 2020 Elections is likely to be no different.

In my considered view, if such a decision was actually made, its implementation will cause widespread disenfranchisement and is likely to result in the impending elections being declared null and void and wholly set aside by an Elections Court, moved by an Election Petition. For there is simply no nexus between the possession of an ID Card and the right to vote. Certainly, the possession of an ID Card is neither a qualification, nor a prerequisite, nor a condition precedent, to vote.

In the Election Petition challenging the 1997 General and Regional Elections: Esther Perreira v Chief Election Officer et al (1998 No. 36P, Demerara), after reviewing, a wide array of judicial authorities across the British Commonwealth, United Kingdom and the United States of America, Justice Claudette Singh (the current Chairperson of GECOM), correctly concluded that the right to vote is “recognized as a constitutionally protected right” and one can only lose that right in accordance with the Constitution and by no other method.

Articles 59 and 159 of the Constitution set out the qualifications and disqualifications of electors. The relevant sections of these Articles provide as follows:

Art. 59 Subject to the provisions of article 159, every person may vote at an election if he or she is of the age eighteen years or upwards and is either a citizen of Guyana or a Commonwealth citizen domiciled and resident in Guyana.

Art. 159 (1) No person shall vote at an election unless he or she is registered as an elector.

(2) …a person shall be qualified to be registered as an elector for elections if, and shall not be so qualified unless, on the qualifying date, he or she is of the age of eighteen years or upwards and either –

(a) is a citizen of Guyana; or (b) is a Commonwealth citizen who is not a citizen of Guyana and who is domiciled and resident in Guyana and has been so resident for a period of one year immediately preceding the qualifying date; and

(c) satisfies such other qualifications as may be prescribed by or under any law.

Currently, there are no other qualifications prescribed by, or under any law, referred to in Article 159 (2) (c) of the Constitution.

Read together, Articles 59 and 159 of the Constitution, aggregate to prescribe that: a person who is eighteen years and upwards, who is a citizen of Guyana or a Commonwealth citizen, who is not a citizen of Guyana, resident in Guyana and has been so resident for a period of one year, immediately preceding the qualifying date, qualifies to be registered; and once registered has an unconditional right to vote. You will note that these Articles make no reference, whatsoever, to an ID Card.

Any condition affecting that right to vote must have been provided for in the Constitution, itself. The Constitution has imposed no additional requirement. Since the Constitution is the supreme law, any conditionality imposed, not provided for by the Constitution and which is inconsistent with it, will be void, pro tanto.

In the Esther Perreira Judgment, Justice Singh, made the following seminal observations:

“I make the observation that article 159, which prohibits a person from voting if that person is not registered to vote does not add any further qualifications. With the introduction of the voter’s identification card, a person may be registered and still not be able to vote. So, in this case, this legislation would have an effect on the constitutional right to vote in that the right would be denied, when the real purpose of the law related to the identification of an eligible voter.”

In the end, Her Honour concluded that the qualification of a special voter’s ID Card to vote and the Act that authorized and promulgated it as a qualification to vote, were both contrary to and in violation of Articles 59 and 159 of the Constitution. In consequence thereof, those elections were wholly set aside on the ground that they were unconstitutional, null, void and of no effect.

While it is recognized that the 1997 Elections involved the use of a voter’s ID Card, the legal principles remain unchanged and must apply as the situation unfolding now bears striking similarities to that which obtained in 1997. Significantly, in those elections, at least an Act of Parliament provided for the use of that voter’s ID Card. However, in this instance, there is no statutory provision (at least I can find none, although I have combed the National Registration Act, the Regulations made thereunder and related legislation), which requires the use of an ID Card, of any type, as a qualification to vote. In any event, such a provision would have run afoul of the Constitution and would have been unlawful.

In similar vein, I refer to the written Judgment of Chief Justice (ag) Roxane George in Christopher Ram v Chief Election Officer et al, (2019HC-DEM-CIV), delivered on the 14th August 2019, in which Justice George ruled that registered electors can only be disqualified from voting by virtue of the provisions laid out in

Article 159 of the Constitution.

I reiterate that nothing contained in Articles 59 and 159 of the Constitution speak to the possession of an ID Card, of any description, being a qualification of a registered elector, to vote. Once registered, a person is ipso facto qualified to vote, unless disqualified by virtue of that Article. Additionally, and in any event, forms of identification, other than an ID Card, for example, a valid Passport, have always been an acceptable form of identification for the purpose of voting.

In the circumstances, should GECOM proceed to implement this bizarre decision, litigation would be an inevitability.

Yours faithfully, Anil Nandlall