FGM vs GECOM: Applicant’s argument of GECOM discriminating against voters from particular regions malicious – Judge

…hit with $2M in court costs

Noting that Guyana’s electoral system was deliberately set up to favour participation of persons from disadvantaged regions, acting Chief Justice Navindra Singh on Friday ruled that the placing of a party on the ballot of a geographical constituency where that party did not submit a Geographical Constituency List of Candidates would amount to a breach of the Constitution, thereby dismissing the case brought by Forward Guyana Movement (FGM) party against the Guyana Elections Commission (GECOM). The judge awarded costs of $1 million each to the Attorney General (AG) and GECOM, payable by September 8. Speaking on the sidelines of the court, following the ruling, FGM Presidential Candidate Amanza Walton-Desir and Attorney for the Applicant, the United States (US)-based Vivian Williams, noted their “disappointment” with the ruling and indicated that the party will be appealing the case within the coming days. This comes even as the country prepares to head to General and Regional Elections on Monday, September 1.
In his ruling, the Judge posited that the omission of parties that do not submit a Geographical Constituency List of Candidates does not result in the violation of any citizen’s Constitutional rights. Moreover, the Judge found that Applicant in the case FGM Candidate, Krystal Hadassah Fisher, put forth no evidence to support her challenge that the practice violates her rights under Article 13, and 149 of the Constitution. “A party being lawfully omitted from the ballot paper cannot result in applicant’s right under Article 13 [being breached]… in any event the Applicant has not presented any evidence of a breach of this article to her,” the judge noted.
“The Applicant’s assertion is speculative… The applicant has not in any way alleged that she has been or may be or will be prevented from voting in General and Regional elections on September 1. Or that any other persons will be prevented from voting… In this regard the court finds that the applicant has not in any way established that her rights under Article 149 of the constitution have been violated.”
“Malicious”

In Guyana’s Constitution, Article 13 speaks to the participation of citizens in Guyana’s democracy, while Article 149 enshrines citizens’ protection from discrimination on the grounds of race or other demographic characteristics. The Judge noted that the applicant has not built out a case for discrimination, describing the applicant’s assertion as “malicious”.
“The applicant’s argument that GECOM is discriminating against voters from particular regions is malicious in that no evidence has been provided to show that GECOM has in any way limited or restricted the participation of any party in the upcoming elections. The applicant has not shown in any way that GECOM unlawfully determined which party appears or not appears on the ballot paper of any geographical constituency,” the judge said. The applicant filed the case challenging the omission of the FGM from the ballots in Regions Seven, Eight and Nine, all regions where the party did not submit Geographical Constituency Lists of Candidates. The judge highlighted that the provisions of both the Constitution and the Representation of the People’s Act (ROPA) are set up to ensure that political parties source their candidates from within the region/geographical constituency from which they want the voters to vote for them, allowing for voters within respective regions to select Parliamentarian representation that comes directly from their Region. This is done to offset Parliamentary seats awarded based on the countrywide popular votes, where regions with smaller populations have less weight.
“Not by mere coincidence”
“It is not by mere coincidence that 10 geographical constituencies correspond to the 10 administrative regions. By allocating these regions, the system guarantees that every area of the country has a voice in Parliament. This prevents smaller or more remote regions from being overshadowed by the larger population centres in the national count. A pure proportional representation system… risks making the system distant from local communities, because citizens are only voting for national party lists and not for representatives from their region,” the judge said.
In Guyana’s electoral system in order to qualify to contest in the General Elections, and vie for seats in the National Assembly, a political party must submit a National Top Up List of Candidates, as well as Geographical Constituency Lists of Candidates to contest in at least six of the geographical constituencies. In the 65 seat National Assembly 25 of the seats are awarded based on results in the votes in geographical constituencies while 40 of the seats are awarded based on the results of the popular vote. “The system is essentially a compensatory proportional representation system. As such, parties not fielding a Geographical List of Candidates from any respective geographical constituency defeats the aim of diverse representation that provisions in Guyana’s Constitution attempts to create,” the judge noted. “Logically, placing a party on a geographical constituency list, despite the fact that they are not fielding candidates in that constituency would defeat what the system is built to achieve, which is inclusivity and a voice for distant, smaller communities.”
The Judge noted that the legislation is framed to give an advantage to individual geographical constituencies, in that a party can only appear on a ballot paper of a geographical constituency for which the party has provided a Geographical Constituency List of Candidates. “In this regard, the omission of those parties for the ballot papers for those geographic constituencies by GECOM was perfectly lawful. In fact, I go further to say placing those parties on the ballot papers of those geographical constituencies would have been a breach of the constitution and ROPA,” the judge said. “Section 39 of ROPA stipulates the requirements for the ballot paper and 39A stipulates the requirements for the ballot paper for geographical constituencies. It is clear from these provisions that a party can only appear on a ballot paper for a geographic constituency if that party submitted a list of candidates for that geographical constituency thereby signalling that they are contesting the seat or seats allocated to that geographical constituency. The Judge’s ruling comes after presentations in the case wrapped up on Wednesday with response from Williams to presentations made by AG Anil Nandlall and Attorney for GECOM, Arudranauth Gossai on Tuesday.
Following the Judge’s ruling on Friday, Gossai appealed for the awarding of $1.65 million in costs, while the AG was asking for $2 million. Speaking on the sidelines after the ruling, Nandlall dismissed the case as an absurd one.
“It should never have been filed. The stupidity of it is alarming. That’s why it was an exceptional case. You can’t be part of a contest that you have not formally entered and that is what the case is about: [FGM] trying to get on a ballot paper where they are not contesting the Geographical Constituency of that place. I don’t understand how [FGM] expected to win such a case… In Guyana you can’t put anything beyond these political parties, they file anything that seems to come to their head,” Nandlall noted. Nandlall noted that he is pleased with the ruling.
“I’m happy that the case was decided the way that it did but I’m a little disappointed that I didn’t get more than $1 million in costs. I feel the judge is very very kind, he should’ve awarded much more than that,” Nandlall said.
Nandlall noted that the AG Chambers would move forward and fight any appeals as they arise.