This question that forms the headline of this article is before the Chief Justice in the case of Christopher Ram v The Attorney General and the decision is due to be given on June 26. Ram is asking the Court for an order that an individual can stand for elections to the National Assembly as an independent candidate in a geographical constituency, and several related orders. The popular notion is that a candidate for elections for a geographical constituency, or otherwise, is only eligible if he or she is on a list of candidates.
For full disclosure, Ram’s lawyer is Kamal Ramkarran, who operates out of the same law firm as I do. As our surnames would suggest, there is a familial connection. He raised the matter with me some months ago in the belief that I have some experience in elections laws and practice. His ideas about the matter were not yet fully formed and some conclusions were instinctual and speculative. I agreed with his basic argument but underlined a particular difficulty, namely, that Parliament was required to enact some provisions but did not do so. I took no further interest in the matter.
I normally avoid “Issues in the News,” the TV programme of Attorney General Anil Nandlall. During last week, however, I heard him mention the case. I decided to listen and was subjected to a barrage of verbiage based on two fundamental misconceptions: (1) that a “certain” presidential candidate was the invisible financier and motivator of the case; and (2) that a candidate has to be on a list of candidates. Not only did the Attorney General, despite the political bravado of his party, expose his party’s inordinate fear of the “certain” presidential candidate, but he displayed a complete misunderstanding of what the case is about, and the arguments advanced in support.
To avoid any doubt, I quote the main order sought, in this case a declaration: “A declaration that on a true and proper interpretation of Article 160(2)(a) of the Constitution, individuals, including the Applicant, have the right to stand for and to elect persons who stand for elections to the National Assembly as independent candidates in geographical constituencies.” There is nothing here, or in any of the other orders or declarations sought, that relates to a presidential candidate.
Now, what does Article 160(2)(a) say? It says as follows: “A person may stand as a candidate for election in any geographical constituency only if, in such manner as Parliament may prescribe, he or she has declared that he or she supports, or has otherwise identified himself or herself with one and only one of the lists related to that geographical constituency, not with a list in any other geographical constituency, and not with any list of another party.” There is no requirement here about the candidate referred to being on a list of candidates.
The Constitution therefore recognises that a person can stand as an individual candidate, but that person must (a) support, or (b) identify with, a list of candidates for the geographical constituency in which he or she is contesting. The Constitution of Guyana, therefore, recognizes that a person can contest the elections for a seat in the National Assembly without being on a list of candidates, subject to Parliament prescribing some rules, which it has not done, and which provided my doubts about eventual success. The AG, in his diatribe, could not comprehend the fundamental feature of the Constitution that an individual can contest a seat without being on a list.
Contradicting the Constitution, the Representation of the People Act (ROPA) omits to recognize that an individual can seek a seat in the National Assembly in a geographical constituency, without being on a list of candidates. Section 11B (2) of ROPA provides only that: “Each party shall submit, for each geographical constituency in which it is contesting the general election, a list of names of persons qualified to be elected to the National Assembly…” The rules that Parliament is required to provide are nowhere to be found.
On the premise that he is right, Ram asks the Court to find that in so far as ROPA has failed or omitted to make provision for individuals to become candidates in geographical constituencies, it is unconstitutional. He also asks for an order to modify ROPA to give a right of individuals to run as independent candidates in geographical constituencies. Reliance for this order will no doubt be sought from decisions of the CCJ.
What is presented above is the core of the case and the basic arguments supporting it as opposed to a loquacious babble about a “certain presidential candidate” and the list system of elections in Guyana. The Chief Justice will listen to the arguments and arrive at a decision in her usual independent and erudite manner. Whatever the decision, it is likely to attract appellate attention.
This article is in response to the Attorney General’s public criticism of the merits of the case and in answer to his contemptible suggestion of a hidden hand behind it. It is not an attempt to influence the decision of the court which, in any event, is impossible.