Grilled on the Court’s jurisdiction to hear a Constitutional challenge filed by a supporter of the Forward Guyana Movement (FGM) just two days before voting commenced in the 2025 Elections, Attorney, Dr Vivian Williams told the Caribbean Court of Justice (CCJ) that its decision would not affect the validity of the 2025 Elections, but could have major implications for future elections.
Krystal Hadassah Fisher, a registered elector in Region 9, has asked the CCJ to declare that the decision of the Guyana Elections Commission (GECOM) to exclude FGM from the ballot in three regions at the 2025 General Elections was unconstitutional and of no legal effect.
The challenge was dismissed by both the High Court and the Court of Appeal in Guyana, with the Appellate Court ruling also that the Courts had no jurisdiction to hear the challenge outside of an election petition.
Fisher’s Attorney, Dr Williams said should the CCJ rule that the decision of GECOM was unconstitutional; it would significantly impact how future elections in Guyana are conducted.
“Any determination whether the court states it plainly in that language or not would in fact affect future elections. If the court for instance says that it is unconstitutional, it is in violation of Article 159 to exclude certain parties from some regions while have them on other regions that ruling will in fact affect all future elections and in fact the rulings of the court commonly serve that purpose,” Dr Williams said.
Williams put forward that position on Thursday, as the issue of jurisdiction took center stage when a panel of judges led by the President of the Caribbean Court of Justice, Justice Winston Anderson heard arguments in the case Krystal Hadassah Fisher v the Guyana Elections Commission and the Attorney General.
It was the CCJ President, who invited Dr Williams to address the issue of jurisdiction frontally, pointing out that while the Court of Appeal ruled that it had no jurisdiction to entertain the proceedings, it nonetheless went on to make “substantive pronouncements” on the application.
From the onset, Dr Williams told the Court that the lower Court erred when it ruled that it had no jurisdiction to hear the case brought by Fisher, explaining that the issue before the Court is not a challenge to the election. He said the constitutional matter seeks to address a voter’s right to exercise her franchise.
Interjecting, Justice Denys Barrow questioned whether an Election Petition would have been better suited, as he pointed to the timing of the application.
“If the day before an election is held, a person mounts a constitutional challenge, what then? Should not the court take the view that, listen, this election is going to be held tomorrow and the result of the election will be opened to challenge by an election petition. The constitutional motion seeks to challenge before the holding of the election, the holding of the election and the result of the election. You want a pronouncement that the election was improperly conducted, null and void, etc. So, is it not the sensible thing for the court, by the time the constitutional challenge comes before it to say listen, the election has already been held. What you want, what you need is something which impugn the elections, which has been held and therefore bring an election petition, and this constitutional challenge we shall not proceed with,” Justice Barrow reasoned.
In response, Dr Williams submitted to the Court that the application was filed before the Election was held even as he emphasized that it was not a challenge to the entire election.
He said voters must have recourse to the court ahead of an election to address any constitutional issue that may arise.
“If a person prior to vote, if electors are prohibited from approaching the constitutional court for that court to make a ruling and a determination with respect to the right to vote, and have to wait until after the harm of not being able to vote have occurred, that would in fact diminish the right to vote,” he submitted.
Justice Anderson, while pointing to the Validity of Elections Act, took note of the fact that an election petition could only be brought at the conclusion of an election, and that constitutional issues may arise ahead of elections. But like the other justices, he pointed to proximity of the challenge to the 2025 Elections.
“Something that I think is very relevant is the National Assembly Validity of Elections Act which I am sure you are familiar with, and when I read it, it suggests that an election petition can only be brought after the election. And I believe it is 28 days thereabout after the election has been completed. So, I could see your point that if you have a constitutional issue you wish to ventilate, a week, two weeks before the election, and the ventilation matter results in your receipt of remedial measures to satisfy you so that elections can be held under proper circumstances, then it might make sense to have that motion ventilated, have the election, and then if there is need, there is an election,” the CCJ President said.
However, the challenge was brought just two days before the members of the Disciplined Services went to the polls. The Court also heard that the High Court handed down its ruling on August 29, just days before the September 1, 2025 Elections, and the Court of Appeal later ruled in the matter in October 2025.
In the circumstances, the Court questioned what would be the effect, now that the elections have long been held. It was against this background that Dr Williams told the Court that its decision would have no effect on the 2025 Elections but emphasized that should the Court find that the actions of GECOM were unconstitutional; there would be implications for the conduct of future elections, in particular the general elections, and how smaller parties contest those elections.
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