Dear Editor,
The main aim of this letter is to show the history of legislation for the introduction of the electoral system of proportional representation in this country and how that history might assist us to interpret existing laws.
On 23rd June, 1964 the British government, by an Order in Council, referred to as The British Guiana (Constitution) Order1964, gave effect to the momentous decision made by Colonial Secretary Duncan Sandys, acting as arbitrator at the November 1963 deadlocked constitutional conference in London, to change the electoral system of British Guiana from first past the post to proportional representation.
The British Guiana (Constitution) Order 1964 contained the following articles:
“1. (2) This Order shall be construed as one with the British Guiana (Constitution) Order in Council 1961 (c)…and this Order and that Order may be cited together as the British Guiana (Constitution) Orders 1961 and 1964.”
“4. (a) Any of the powers conferred on the Legislature by the following provisions of the Constitution set out in Schedule 1 to this Order (stating them) shall until it has been exercised by the Legislature be exercisable by the Governor by regulations made by him in his discretion and the references in those provisions to laws of the Legislature shall be construed accordingly.”
Articles 46 and 47 (1) and (2) of the Schedule provided as follows:
“46. There shall be for British Guiana a House of Assembly.
“47. (1) Subject to paragraph (2) of this Article, the House of Assembly shall consist of fifty three members.
“(2) For the purpose of returning the said fifty three members of the House of Assembly British Guiana shall form a single electoral area and the said members shall be elected in accordance with such system of proportional representation, and otherwise in such manner, as may be provided by regulations made by the Governor.”
The Governor made regulations contained in the British Guiana (Date of Elections) Order 1964 which was incorporated in an Order in Council. The following are stated:
“3. (1) An election shall be conducted by secret ballot in accordance with the system of proportional representation as prescribed by these regulations.
“(2) The Colony shall form one electoral area for determining the result of the election; and votes shall be cast in favour of lists of candidates published in accordance with regulation 20.”
“10. (3) A list of candidates shall set out the names, numbered serially and one below the other in the order of priority for which their election is sought, of not more than fifty three persons who are qualified to be elected to the House of Assembly and who have consented to the inclusion of their names in the list as candidates for election, together with address and occupation of each such person.”
“12. The persons submitting a list of candidates may nominate one of their number as representative of the list and another as deputy representative and…
“(a) Where neither a representative nor a deputy representative is so nominated, the persons whose signatures appear first and second in the submission shall be deemed to have been nominated as representative and deputy representative respectively.
“13. (1) The persons submitting a list of candidates may, if they think fit, submit to the Chief Election Officer a supplementary list; and if, on the allocation of seats under regulation 69 the number of names on the list of candidates is less than the number of seats allocated to the list, or if, on the occurrence of a vacancy in the House of Assembly, there is no name on the list of candidates of a person to fill the vacancy in accordance with regulation 73, the name or names at the commencement of the supplementary list shall be transferred (in the order in which they appear in the supplementary list) to the bottom of the list of candidates and shall be deemed to be included therein.
“(2) The provisions of these regulations shall, except where the context otherwise requires, apply in relation to a supplementary list as if it formed part of the list of candidates.”
“68. The Chief Election Officer shall, upon receipt from the returning officers of all the districts of the returns required by sub-paragraph (f) of paragraph (1) of regulation 66, add together the number of valid votes cast in each district for each list of candidates and thereupon the Commission shall ascertain the result of the election in accordance with the provisions of regulations 69 and 70.
“69. (1) The total number of votes cast for all the list of candidates shall be divided by fifty three and the whole number resulting from the division shall be known as ‘the electoral quota.’
“(2) The number of votes cast for any list shall be divided by the electoral quota; there shall be allocated to that list a number of seats equal to the whole number resulting from that division; and the number of votes represented by a fraction so resulting shall be known as “surplus votes” of the list; and if the number of votes cast for any list is less than the electoral quota, those votes shall accordingly to be treated as surplus votes of that list.
“(a) One seat shall be allocated to the list with the largest number of surplus votes.
“(b) If the number of seats so remaining is two or more, one seat shall be allocated to the list with the next largest number of surplus votes, and so until all the seats so remaining have been allocated.
“70. When seats have been allocated to any list of candidates in pursuance of regulation 69, the Commission, starting at the commencement of the list and continuing successively, shall extract from the list the number of names that corresponds to the number of seats allocated to the list; and the persons whose names are extracted shall, except as may be otherwise determined in accordance with any law made under article 70 of the Constitution, be deemed to have been elected as members of the House of Assembly.”
“73. (1) When a seat in the House of Assembly is vacant for any cause other than a dissolution of the Legislature, the vacancy shall be filled by that person, being a person who is qualified for election as, and is willing to become, a member of the House of Assembly, whose name is on the relevant list of candidates and appears therein next after the names of all persons who became at the time of election or have since become, members of the House.”
Explanatory note
The following edited version of the Explanatory Note to the Order adequately summarizes the position:
(This note is not part of the regulations but is intended to indicate their general purport)
(1) These regulations provide for the election of fifty-three members of the House of Assembly by a system of proportional representation under which votes are cast in favour of lists of candidates, the whole of British Guiana forming one electoral area for determining the result of the election.
(3) After the votes have been counted the results of the election are to be ascertained by the Elections Commission in the following manner. Firstly an “electoral quota” is found by dividing the total number of votes cast for all lists of candidates by fifty three (the number of seats to be filled in the House of Assembly). Secondly the number of votes cast for each list is divided by this electoral quota and each list is allocated a number of seats equal to the whole number resulting from the calculation. If any of the fifty-three seats still remain unallocated, they are to be awarded to the lists with the largest number of “surplus votes”, that is to say, the votes represented by any fraction over and above the whole number. Finally the seats allocated to any list are to be filled by the equivalent number of candidates named in that list starting at the top of and continuing down the list. Thus if, for example, a list is allocated ten seats, the first ten candidates on the list will be elected.
(4) Provision is included in the regulations to enable persons submitting lists of candidates to submit also, if they wish, supplementary lists. The purpose of this provision is to enable political parties to ensure that, if their main lists are exhausted before or during the life of the legislature, there will nonetheless remain persons who can fill any vacancy in the House to which their party is entitled.
(7) The Elections Commission is charged with the responsibility of the general direction and supervision over the administrative conduct of the election and all election officers are made responsible to them.
The provision for a supplementary list by a political party, as a practical matter, catered for the situation where all parties except one boycott the election or if one party wins all of the seats at an election. Casual vacancies occurring during the life of that government, would be filled by the extraction of names from the supplementary list, beginning with the name at the top of that list.
Section 70 above made it clear that, after the election result was known, and after a mathematical exercise, seats were allocated to a list.
The section then refers to persons whose names were extracted from the lists. This was done automatically as the names were extracted in priority order. The persons were only then deemed to be members of the House of Assembly, that was, after extraction of names. There is absolutely nothing in the section to suggest that the persons on the entire list (and supplementary list) had been elected.
The Constitution then in force contained brief provisions concerning the electoral system and mandated to the Governor the duty to make provisions for the conduct of the election and extraction of names and election of members of the House of Assembly.
The 1966 Independence Constitution
The 1966 Independence Constitution contained the following provisions for elections:
“66. (1) The election of members of the National Assembly shall be conducted by secret ballot in accordance with the system of proportional representation prescribed by this article.
“(2) Subject to the provisions of the next following paragraph –
“(a) Votes shall be cast throughout Guyana in favour of lists of candidates;
“(b) Each elector shall have one vote and may cast it in favour of any of the lists, and
“(c) The seats of the elected members in the Assembly shall be allocated between the lists in such a manner that the proportion that the number of such seats allocated to each list bears to the number of votes cast in favour of the list is as nearly as may be the same for each list.
“(4) Subject to the provisions of this Constitution, Parliament may make provision for –
“(a) the registration of electors;
“(b) the manner in which lists of candidates shall be prepared and entered for an election;
“(c) the manner in which the number of seats to be allocated to each list shall be calculated in order to give effect to the provisions of paragraph (2) or paragraph (3) as the case may be of this article;
“(d) the combination of lists of candidates for the purpose of the allocation of seats (but not for the purpose of voting);
“(e) for the extraction from the lists and declaration of names of the candidates who have been elected; and
“(f) generally for the conduct of elections and for giving effect to the provisions of this article.”
Interestingly, article 70 reads as follows:
“70 (1) Subject to the provisions of paragraph (3) of this article, if the seat of an elected member of the National Assembly is vacant for any cause other than a dissolution of Parliament, the vacancy shall be filled by the person who is not an elected member of the Assembly but is qualified for election, as, and is willing to become, such a member and whose name is on the relevant list of candidates and appears nearest to the top thereof disregarding the name of every person who became at the preceding election, or has become, an elected member of the Assembly, and if there is no such person the seat shall remain vacant until it is filled consequent upon an ensuring election.”
Article 67, the above article and subsidiary laws were amended in 1968 to make provisions for the alphabetical listing of names rather than priority listing and for the extraction to be done by the list representative or in certain circumstances by the deputy list representative and/or others.
Whereas the Governor was mandated by the 1964 Constitution to make laws for the conduct of the election and consequential matters, the Independence Constitution maintained the same scheme, and mandated to Parliament the making of laws for the conduct of elections and consequential matters. The Constitution itself does not make provisions for the election of any one or of any list of candidates. Parliament made these provisions in the Representation of the People Act, Chapter 1:03.
The Representation of the People (Adaptation and Modification of laws) Act, 1968 states:
“Substitute for paragraph (3) of regulation 11 the following:
“11. (3) A list of candidates shall set out the names, one below the other in the alphabet order of the surnames, of fifty three persons who are qualified to be elected to the National Assembly and who have consented to the inclusion of their names in the list as candidates for election, together with the address and occupation of each such person.”
“68. The Chief Election Officer shall calculate the total number of valid votes of electors which have been cast for each list of candidates and thereupon shall ascertain the result of the election in accordance with provisions of regulations 69 and 70.”
“70. When seats have, in pursuance of regulation 69, been allocated to any list of candidates-
“(a) The representative of the list or (deputy representative) shall extract from the said list as many names belonging to candidates selected by him for the purpose, including his own name, as can be so extracted without their number exceeding the number of seats allocated to that list; and the Chief Election Officer shall declare such names, in the order of their extraction as aforesaid, to be the names of the candidates on such list who have been elected.”
It is crystal clear from these provisions that the number of elected members of the National Assembly for each party is the number of seats gained by that party at the election.
There is absolutely nothing in these provisions to suggest that an entire list of candidates has been elected or that the election of members of the assembly preceded the extraction of names.
Desmond Morian v Attorney General and Speaker of the National Assembly
In the above case, the Chief Justice relied heavily on the phrase declaration of the names of candidates who have been elected… in article 160 (3) (v), in coming to the conclusion that:
“Article 160 (3) (a) (v) makes it pellucidly clear that extraction is made from the lists of candidates who have been elected. Therefore, the status of a candidate as an elected member of the Assembly necessarily precedes any act of extraction made by the representative of that list to be holders of seats in the Assembly on behalf of the other persons named thereon.” Emphasis in original.
As we have seen, the provision of Article 160 (3) (a) (v) in our present Constitution is exactly the same as Article 66 (4) (e) of the Independence Constitution.
In my respectful view, the phrase ‘who have been elected’ merely defines the category of persons concerning whom Parliament may make provision. The important words in the article are ‘Parliament may make provision’.
The procedures for the election of members of the National Assembly are contained in the Representation of the People Act.
The closing scene of imperial dominion in British Guiana was marked by the stark demonstration of imperial power when, by an Order-in-Council, the British Governor instead of the local legislator, made regulations for the conduct of the last election supervised by the British in December 1964.
The Independence Constitution mandated to Parliament the making of laws for the conduct of elections and the election of members of the National Assembly.
I respectfully disagree with the ruling of the Chief Justice in Morian v AG et al that two APNU+AFC candidates are elected members of the National Assembly because they are listed on the APNU+AFC slate of candidates.
Yours faithfully,
(Name and address provided)
