Legislation intended only for 1992 elections – Nandlall

Residency for voting

Attorney-at-Law Anil Nandlall has argued that the 1991 legislation which sought to reinstate residency as a requirement for registration to vote, into the Constitution of Guyana, was merely inserted to cater for existing circumstances leading up to elections the following year and was not intended to be kept.

Nandlall was at the time making oral submissions in response to this contention introduced by Attorney General Basil Williams last week. The Appellate Court was set to rule on the partial appeal filed by the AG to reverse an August 2019 High Court decision which blocked the removal of persons from the National Register of Registrants (NRR) Database – something that the House-to-House Registration exercise sought to do by creating a new database.
Chief Justice (acting) Roxane George had ruled, in the case brought by Christopher Ram, that it is unconstitutional for qualified persons to be removed from the list if they are not in the jurisdiction or not at their residence during the registration exercise.

However, AG Williams is contending that Section 2(f) of the Constitution (Amendment) (No 4) Act 1991 (Act No 36 of 1991), reinstituted the residency requirement. This piece of legislation was part of the constitutional reform process prior to the 1992 elections.
The State argued in court on Thursday that while this legislation was omitted from the subsequent revised editions of the Constitution, it does not affect its validity especially since it was never removed from the laws.
But Nandlall, who is representing Ram in the proceedings, pointed out that the legislators are not that incompetent to make such an omission in the Amendment documents of the Constitution.
He explained that the 1991 statutory provision was specifically created in light of prevailing and peculiar circumstances at the time and would have “died a natural death when those circumstances came and went” following the 1992 elections.
“…because of prevailing exigent circumstances at the time, a series of reforms took place, some of which needed legislative support and this piece of legislation, which is under review, is part and parcel of a menu of legislation enacted at the time. Many of them were specifically to deal with, and only to deal with, the peculiar circumstances which arose at that particular juncture and their efficacy and validity did not extend beyond that factual matrix that they were intended to address,” he told the court.
According to Nandlall, who is a former Attorney General, the Act must be read with the entire Section 2 and not just 2 (f), since the latter cannot exist by itself.
“Once read carefully… the legislation clause by clause tells a reasonably intelligent reader that it applies only with temporal effect… There is more comprehension here than law, there is no principle here… This thing was passed only for that period… So how can you read this to apply anywhere else,” he asserted.
Nandlall went on to tell the court that it should concern itself with what the law is and not what it should be, as it is being asked to do by the AG. He noted that the revised Constitution is a summary of the amendments since 1980 that is constantly updated and the 1991 legislation was never included.
“So that was never intended to be kept and so it was omitted, and properly so… But there is no omission here, this was deliberately not intended [to be kept]…,” he stressed.
The former AG further outlined that the residency requirement can be inserted into the legislation, but it is not there. However, he noted that if this is to be done then residency would have to be defined clearly to take into account situations where persons may be out of the jurisdiction, such as students studying overseas, during the registration period.
Nandlall’s arguments were supported by lawyer for the Guyana Bar Association (GBA), Attorney Sanjeev Datadin, who pointed out that while the 1991 legislation was validly passed, that altered reading of the Constitution came to an end when that Parliament of 1991 ended.
“…What is contained in Section 2 was meant to only be applied for so long as that Parliament existed. The words are very unique, Your Honour, it says in relation to ‘the Parliament that was dissolved’. It doesn’t say in relation to ‘Parliament’ without more… So it says in relation to this Parliament that was dissolved and recalled, read the Constitution as such. When that Parliament is out of existence, there is not lawfully authority to continue [to] read the Constitution as such,” Datadin asserted.
The Appellate Court also heard submissions from Senior Counsel Stanley Marcus, representing the Guyana Elections Commission (GECOM) and Senior Counsel Roysdale Forde, representing Chief Elections Officer Keith Lowenfield during Thursday’s hearing.
Justice Cummings-Edwards at the end of the session informed the parties that the appellate panel, which also includes Justices Dawn Gregory and Rishi Persaud, will deliver their rulings on whether residency is a requirement for voting on Monday, February 10 at 15:00h.