FGM vs GECOM: Court decision tomorrow on election-delay case

Following the conclusion of submissions and presentations on Wednesday, acting Chief Justice Navindra Singh announced that he will deliver his ruling on Friday at 14:00h in the matter brought by the Forward Guyana Movement (FGM) against the Guyana Elections Commission (GECOM).
Presentations closed with the attorney for the applicant, US-based Vivian Williams, replying to the arguments put forth on Tuesday by the attorney for GECOM, Arudranauth Gossai, and the Attorney General, Anil Nandalall.
However, the Attorney General accused Williams of attempting to introduce new arguments into the case.
“Chaos has overtaken us because [Mr Williams] has departed from his pleadings and has gone all over this place,” Nandalall commented.
“A lot was said this morning that was not part of the original case. [William’s] case has shifted from yesterday to this morning, and the shift has made the case even worse. Fisher [the applicant] is clearly on a fishing expedition, and the lawyer is also at sea.”
Nandalall accused Williams of making a political speech and attempting to change his arguments given what was presented by the defending attorneys on Tuesday.
“In his reply to the submissions of the Attorney General and GECOM Attorney, he introduced into the case new arguments, realising that the arguments that he had put forward [from Tuesday] would not succeed. But in my respectful view, the shifts which he made this morning made the case even worse,” Nandalall said.
Notwithstanding Williams making an over one-hour presentation, the judge noted to Williams that he spent much of his time simply arguing his case and did not respond to any particular arguments of the defending attorneys.
The judge went on to note that once “the arguments step outside of the pleadings, they will not be considered in the case.”
However, should Friday’s ruling not be in FGM’s favour, an appeal by FGM to the Appellate Court, Gossai noted, should not affect the moving forward of Monday’s elections.
The case has been filed by Region Nine resident and FGM candidate Krystal Hadassah Fisher, who is challenging that FGM’s exclusion from the ballot in her region violates her constitutional right to vote for a party of her choice. One of six political parties contesting the upcoming September 1 General and Regional Elections (GRE), FGM did not submit geographical constituency lists in Regions Seven, Eight and Nine; as such, they have not been included on the ballot in those regions.
Political parties wishing to contest for a seat in Guyana’s 65-seat National Assembly must submit a National Top Up List to vie for40 seats, while parties must submit individual Geographical Constituency Lists of Candidates to contest for the remaining 25 seats, which are distributed across 10 geographical constituencies.
Gossai has argued that it is the votes from the geographical constituencies lists that enable parties to attain votes for their National Top Up Lists and not the other way around.
“[Voters] are not voting for a National Top Up List; the National Top Up List is not an independent list. You cannot submit a National Top Up List and forgo the constituency lists. Your geographical constituency [votes] is what determines whether you get a vote on your National Top Up List. The National Top Up List is like the baby of the Geographical Constituency Lists, so if you don’t have a mother, you can’t have a child,” Gossai noted.
“The vote comes from the constituency lists and then simultaneously is counted to the Nat top-up list; in other words, if you don’t contest in geographical constituency 9, you can’t get a vote for your top-up list because you don’t have a geographical constituency list. I don’t believe that the court can find that with the National Top Up list alone that the parties can automatically find themselves on the ballot for the geographical constituency where they have not submitted lists; otherwise, the court would be committing a breach of law.”
At the core of the arguments of both sides are the interpretations of articles contained in Guyana’s Constitution and the Representation of the People’s Act (ROPA).
In her application, Fisher has asked the court to declare that the exclusion violates Articles 13, 59 and 159 of the Constitution, as well as a denial of her right, as a candidate, to ballot access and to contest in the elections.
However, the AG has rejected the narrative that GECOM’s actions amount to discrimination, instead pointing to FGM’s deliberate decision not to contest in Region Nine. The AG continued to argue on Wednesday that the applicant’s attorney has failed to establish a constitutional violation.
“There is no provision in the constitution that has been identified here and a clear, unequivocal assertion made that this provision has been violated. He is saying that GECOM’s application of ROPA is in violation of the constitution.”
“If you are alleging a constitutional breach, you must identify the section of the constitution and the article being breached and set out the factual substrata of evidence that establishes the facts. We don’t have anything like this here. All you have are general statements about political participation… Broad generic terms – no singular provision has been identified for us to examine.”
Nandalall, in his arguments to the court, has highlighted that any citizen’s right to vote, while protected under the Constitution, is not absolute and must be exercised within the framework of electoral laws.
According to Nandlall, the Constitution guarantees the voter only the right to vote for those who are contesting, and in this instance, FGM did not submit a geographical constituency list for Region Nine, thereby making itself ineligible to appear on the ballot in that region.
The exclusion of FGM from the ballot in Region Nine, the AG argued, is a direct result of the party’s own failure to comply with the rules outlined under the ROPA.
Williams has acknowledged that the case is not arguing that GECOM has violated ROPA or that ROPA is in conflict with the Constitution.
“But GECOM could be consistent with ROPA and do everything that ROPA asked them to do and still not be within the constitution,” Williams said.
“So the question is not just that the applicant must prove a violation by GECOM of ROPA; GECOM’s supreme boss that it has to comply with, at the top level, is the constitution. The question ultimately would be that what GECOM is doing is not in conformity with the Constitution.”
Williams’ argument is that the right to vote is a fundamental, universal right that cannot be altered. According to Williams, omitting political parties from the ballot of regions where they did not submit a geographical constituency list of candidates creates an uneven and discriminatory system that disenfranchises residents in the regions where the omitted party does not appear.