“Most unmeritorious” – Appeal Court says in rejecting FGM’s bid to challenge GECOM

…says party’s ballot exclusion was their own choice

The Court of Appeal on Thursday dismissed the Forward Guyana Movement’s (FGM) case against the Guyana Elections Commission (GECOM), calling it “most unmeritorious” and noting that “this case does not meet the bar of a major matter in the public interest”. FGM had challenged GECOM’s exclusion of political parties from ballots in constituencies where they are not contesting.
In a summary Judgement read by acting Chancellor, Justice Roxane George, the court upheld the August 29 ruling by acting Chief Justice, Navindra Singh, that the placing of a party on the ballot in a geographical constituency where that party did not submit a Geographical Constituency List of Candidates would amount to a breach of the Constitution.
“The court agrees with the decision of the chief justice that the application has no merit. The court agrees that ballot access and therefore voting rights are limited to parties contesting the particular geographical constituency,” Justice George noted.
According to Justice George, the chief justice was correct in his interpretation of Article 160 of the Constitution and ROPA that “a political party cannot earn votes in a geographic constituency if it does not field candidates for, and thereby does not contest, that constituency. As such, the finding that the political party can only be included on a ballot for a constituency it is contesting is correct.”
The case was filed by FGM Region Nine (Upper Takatu-Upper Essequibo) candidate Krystal Hadassah Fisher, who was represented by Attorney Vivian Williams. The Court criticises the applicant for cherry-picking sections of the constitution in putting together arguments for the case.
“Most unmeritorious”
“It is unfortunate that the litigant seeks to construe the constitution or relevant legislation by relying on fragments of provisions in order to bolster their misguided views, rather than reading the provisions as a whole. As a consequence, the appeal is dismissed,” Justice George directed.
“This case is most unmeritorious and has taken up significant judicial time, with the court having to deal with it with urgency because of the claims made. Given the constitutional and statutory provisions which are clear, this case does not meet the bar of a major matter in the public interest.”
Fisher had asked the court to declare that the exclusion of the political parties on ballots in non-contested regions violates Articles 13, 59, 149 and 159 of the Constitution and denies her a right to ballot access and that GECOM is discriminating against voters through this practice.
Fisher also argued that the practice was in contention with the Representation of the People Act (ROPA). The Court underscored that the case failed to put forth any arguments showing discrimination in any regard.
“The appellant has not shown how she has been discriminated against when compared to any other elector or candidate in other geographical constituencies,” the Judge said.
“There is nothing in the provisions or the omission from the ballot that suggests discrimination in any form or fashion. It would be absurd to hold that one’s political party can choose not to participate in an election, and then one is permitted to cry foul, relying on Articles 13 and/or149.”
The Court awarded further costs of $1 million each to the defendants in the case, the Attorney General and GECOM, payable by November 14. The Court upheld the previous $1 million each in costs that was awarded by the High Court.
The Court noted that the applicant did not have a clear understanding of her rights and privileges.
“It is clear that the appellant has a misconceived sense of her entitlement to vote, based on a fundamental lack of recognition that the political party she chose to represent decided not to represent her in geographical constituency nine and the other constituencies where it was not placed on the ballot,” Justice George said.
Fisher’s FGM party did not submit Geographical Constituency Lists of Candidates for Regions Seven (Cuyuni-Mazaruni), Eight (Potaro-Siparuni) and Nine and was therefore excluded from the ballots in those regions in the recent September 1 General and Regional Elections (GRE). As such, Fisher’s FGM party was not listed on her ballot in Region Nine, where she voted.
In the application it was also noted that the Assembly and Liberty for Prosperity (ALP) party was also not included in Regions One, Two, Eight, and Nine, where that party did not submit geographical constituency lists. However, ALP was not a party to the case.
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 10 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.
“Declined to include themselves”
In the August 29 ruling, the High Court underscored 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 keeping with the previous ruling of the High Court, the Appeal Court also ruled that the fault was with FGM for not making its party available in those regions.
“It appears that it is FGM that discriminated against its constituents or persons who may have wanted to vote for or support it by not fielding candidates in the identified geographical constituencies. FGM and ALP declined to include themselves in the democratic processes of the elections in these constituencies. GECOM did not misinterpret, misapply or violate any law in not placing these parties on the ballot, where they decided not to compete,” Justice George said.
“A political party and, by extension, its supporters can all only be included in the democratic process if the party seeks to participate. The appellants’ party, through the statutory framework, had the opportunity to contest all ten geographical constituencies but declined to do so. That most definitely is not the fault of GECOM.”
The Court accused the applicant of intentionally omitting from the application that it is the political parties’ choice to not contest particular regions, and not a doing of GECOM.
“The appellant did not specifically disclose in her affidavit… that FGM chose not to contest constituencies Seven, Eight, and Nine, and that the ALP chose not to contest constituencies One, Two, Eight, and Nine. Her affidavit conveyed the impression that GECOM unilaterally excluded the names of FGM and ALP from the ballots in these constituencies. This is a material nondisclosure on her part, which the court frowns on, since she must have been aware of this information, particularly as a candidate for FGM. Indeed, such a material nondisclosure could lead to the dismissal of a case,” the Judge noted.
At the commencement of the ruling, Justice George noted that the challenges in the case were in fact supposed to have come by way of an election petition, which is filed after the completion of the elections. As such, it was noted that the Court of Appeal in actuality did not have jurisdiction to hear the case, and the Court’s pronouncements in the case were “purely academic” or to be on record in any eventuality that it is ruled by a higher court that the Court of Appeal had the jurisdiction to give a ruling on the matter.