Rickey Singh, Contributor
IF THE people of Trinidad and Tobago felt they were faced with a constitutional/political impasse between their President and Prime Minister, then a High Court Judge's ruling in Guyana last week had left the Guyanese people confronting what seems a much more critical constitutional dilemma.
The Caribbean Community's point man on justice and governance, Prime Minister Kenny Anthony of St. Lucia, was being briefed in Port-of-Spain last Monday on the implications of President ANR Robinson's refusal to appoint seven defeated candidates as Senators, as advised by Prime Minister Basdeo Panday, when an unprecedented ruling came from High Court Judge, Claudette Singh, in Guyana.
The required use of Voter ID cards to cast a vote at the December 15, 1997 general elections, she ruled, was a violation of the country's constitution and sufficient for her to declare the elections invalid.
There are now serious questions on the implications for governance as a result of her decision. For a start, does her decision render the Government illegal and, consequently, all of its acts illegal?
If so, how will this affect the conduct of new elections already scheduled for March 19 by the Guyana Elections Commission? The legitimacy of the Commission itself, and judicial appointments as well, must inevitably be affected if indeed the legality of acts by the Government are to be challenged as a result of the constitutional violation she cited as having taken place when the parliament approved unanimously amendments to the Representation of the People Act for use of voter ID cards for the 1997 elections.
Are there remedial measures that could properly be taken and is this a matter for the court or parliament? The country anxiously awaits on the judge's "consequential orders" that should be forthcoming on Tuesday morning.
The main opposition People's National Congress (PNC) of ex-President Desmond Hoyte, had filed a petition through one of its supporters, Esther Perreira, claiming the results of the poll were flawed by widespread unlawful acts and irregularities.
No fraud
But there was no political joy forthcoming on that score for the opponents of the People's Progressive Party (PPP)/Civic Government. With its own history of rigged elections from 1968 to 1985, the PNC very much wanted a verdict deeming the elections void on the basis of fraud. This did not happen.
Justice Singh said that "having considered the evidence in relation to the massive irregularities which have occurred, I am unable to make a positive finding whether those unlawful acts or omissions per se, might have affected the results....
"While the final results might have been so affected as a mere possibility, for the Court to find this as a probability would necessarily involve the Court in speculation and the Court cannot speculate.
"As such", she added, "I am unable to find that it is more likely than not that the proved unlawful acts or omissions did affect the final results of the elections...."
Make that Round one, if you like, of a decision based on two major but related issues alleged massive irregularities and unconstitutional requirement of Voter ID cards.
Knockout blow
Round two, or the second major aspect of the elections petition, proved to be a knockout blow for everybody the Government and the other parliamentary parties. Ironically, the petitioner's own party, PNC, had stated that it was "unreservedly" supportive of the legislation unanimously approved by the National Assembly on September 18, 1997 for the use of voter ID cards through an amendment to the Representation of the People Act.
Justice Singh ruled that making the ID cards compulsory "no voter ID card, no vote" as was the slogan for registration of voters for the 1997 elections, contravened article 159 of the constitution. She addressed this violation in the context of whether a "general illegality" had affected the whole election.
She was to finally rule that the elections were not conducted in accordance with the provisions of the Representation of the People Act (Chapter 1.03) and articles 59 and 159 of the Constitution of Guyana.
The incumbent PPP/Civic had won a second term by winning 36 of the 65 seats in the National Assembly an overall majority of seven on the basis of having won 55.3 per cent of the popular valid votes with an official voter turnout of some 88 per cent.
But political demonstrations in Georgetown led by the PNC resulted in CARICOM's intervention and brokering of an Accord in of January 1998 to have new elections by January 17, 2001. The Elections Commission, however, which has sole responsibility for conducting the elections, said it was not possible to have the elections earlier than March 19. The parties were squabbling over interim governance arrangements between January 18 until the outcome of the March 19 poll when the unprecedented decision came from Justice Singh.
From Port-of-Spain now to Georgetown the issue is one of constitutional/political dilemma.
The judge's decision to declare the elections null and void was based on her contention that it was a violation of Articles 59 and 58 of the 1980 Constitution to make compulsory the use of the voter ID for an elector to vote at the 1997 elections.
The fatal flaw, it seems, resided in the legal route pursued by ALL of the parties represented in the parliament PPP/Civic, People's National Congress (PNC), Alliance for Guyana (AFG) and The United Force (TUF). Instead of UNANIMOUSLY approving amendments to the Representation of the People Act with the Electoral Laws (Amendment) Bill No.22 of 1997 as they did on September 18, 1997 they should have amended the relevant sections of the Guyana Constitution itself.
A technicality? Perhaps, but one serious enough to warrant the judge's unprecedented decision to declare void the elections. It was a tragic error and clearly the blame must be equally shared by ALL of the parliamentary parties, including the main opposition PNC, which is now crowing that the judge was "right".
In relation to some unfortunate reporting, including the local media, and comments to suggest that the decision to declare the elections null and void had to do with "fraud", this is more than factually incorrect. It is professionally wrong and politically mischievous.
The principal claim of the PNC's petitioner, Esther Perreira, was the elections were so flawed, the irregularities so excessive, as to render the results invalid. Not so, ruled the judge. Even in flaying the Chief Elections Officer for "deliberate flouting of the law", she was clear in determining that his actions did not amount to fraud.
The petitioner on behalf of the PNC leader had failed to establish, according to the judge, that the results may have been affected by "unlawful act or omission". This was not a case of judicial "generosity" as the PNC now wishes to project. Declaring the results as null and void had nothing to do with "fraud". Those engaging in this falsehood must have an agenda of their own. And whether or not the judgement makes the Government illegal, is yet to be established. The judge's consequential order was still unknown at the time of writing. This issue will, therefore, be revisited.
Rickey Singh is a journalist based in Barbados.
