CONSTITUTIONAL CONUNDRUMS


Among the events after elections are: (1) After the vote count, the results declared by the Chief Election Officer. (2) The electoral quota is calculated by dividing the total number of votes cast by the total number of MPs. (3) The votes obtained by each list is then divided by the electoral quota which allocates the number of seats to each list. (4) The list representative extracts from the list and submits to the Chief Election Officer the names of those persons to become elected members.  (5) The Chief Election Officer declares those names to be the names of candidates on such list who have been elected.

The Chief Justice (ag) said, in the recently decided case of Morian v The Attorney General and the Speaker of the National Assembly, that all candidates become elected members of the National Assembly before the allocated of seats among the successful lists, that is, before stage 3. He said: “It is further clear that members of such successful lists are constitutionally recognized as ‘elected members’ even before the stage of allocation between those successful lists is reached – let alone before extraction (or selection) is made by the representatives of such lists after such allocation of seats between or among the successful lists.”

In practical reality this means that, assuming that the two successful parties, APNU+AFC and PPP/C, submitted lists with 65 candidates each (more than 65 candidates can be on a list), upon the declaration of the election results, 65 x 2 = 130 candidates become elected members of the National Assembly. This is a revolutionary interpretation of Guyana’s elections’ laws.

Article 160(1)(c), on which the Chief Justice (ag) relies, provides that: “The seats of the said elected members in the Assembly, as determined under this paragraph, shall be allocated between the lists” so that the proportion of seats to votes for each list is as close as possible. The provision is construed by the Chief Justice (ag) to mean that elected members are constitutionally recognized before the allocation of seats.

After the determination of the number of seats to which each successful list is entitled, Section 98 of the Representation Act then applies. It provides that the representative of the list shall extract from the list the number of names allocated to that list and “the Chief Election Officer shall declare such names to be the names of candidates on such list who have been elected. “

At this point the first conundrum emerges. Since the names extracted have to be equal in number to the seats allocated, the two parties all together will extract 65 names being the number of seats in the National Assembly. This means that 65 (130 – 65 = 65) of the 130 elected members automatically lose their status as elected members. But an elected member of the National Assembly holds a constitutional office from which he/she can be deprived only by a process provided by Article 156 of the Constitution. No process set out in Article 156 allows an elected member to automatically fall by the wayside upon the extraction of names by the list representative.  These 65 elected members presumably remain in constitutional limbo.

Having regard to the Chief Justice’s interpretation that members become ‘elected’ when the election results are declared, it follows that section 98 of the Representation Act, which also provides for candidates to be ‘elected’ by being extracted, is unconstitutional and cannot be implemented because the candidates were already ‘elected.’ The second conundrum, therefore, is how, on what basis and utilizing which constitutional provision can 130 persons constitutionally (not to mention physically) fit in a 65 seat National Assembly.

A less problematic interpretation could be possible. In accordance with the marginal note to Article 160(1)(c), which says “Electoral System,” Article 160(1) defines what the system of proportional representation “shall be.” Article 160(1)(c) then defines by what system the seats “of the said elected members in the Assembly,” as determined under this paragraph, “shall be” allocated. The use of “Electoral System” and “shall be” suggest that the Article tells us how the “electoral system” of proportional representation is to function so as to provide “elected members.”  It refers to but does not define an elected member.

Article 160(1)(c) refers to “the said elected members.” The use of the word “said” suggests that the phrase refers to the “elected members” who were referred to previously in the same article. The only other reference to “elected members” is “such member or members of the National Assembly.” It was explained above that the “said elected members” and “such member and members of the National Assembly” merely place a name to the offices which emerge out of the application of the system which is defined in 160(1). If this explanation and that in the paragraph above are adopted, a candidate will become an elected member only when section 98 of the Representation of the People Act is invoked and the names are extracted from the list, and not before. The two conundrums created by the Chief Justice’s (ag) preference will disappear.

It is quite proper for a judge to give decisions during pre-retirement leave. It is within the boundaries set by the Court of Appeal in the past.

Leave a Reply