The Narrow Gate: What the FGM Appeal Asks the Caribbean Court of Justice to Decide

Commentary · Law & Governance

In October, we called the Court of Appeal’s dismissal of Fisher v. GECOM a missed opportunity for democratic progress. The hearing now before the Caribbean Court of Justice reveals the deeper danger: a jurisdictional doctrine that would make the missed opportunity permanent.

By Terrence Richard Blackman, Ph.D. · July 16, 2026

I. The Position We Have Already Taken

When the Court of Appeal dismissed Fisher v. GECOM last October, this Journal called the ruling a profound missed opportunity for Guyana to strengthen its democratic foundations, and we said the fundamental issues it raised might yet find vindication at the Caribbean Court of Justice.^[2] That day has come. The CCJ has now heard argument in the appeal arising from the Forward Guyana Movement’s exclusion from the ballot in Regions Seven, Eight, and Nine at the September 1, 2025 elections. And what the hearing made unmistakably clear is that the decisive battle is not over what the Constitution means. It is over whether any court will ever be permitted to say.

Our October position bears restating, because it frames everything that follows. Article 160(1)(a) of the Constitution requires that votes be cast throughout Guyana in favour of lists of candidates, with seats allocated proportionally from the national vote. Guyana’s system is a hybrid — twenty-five geographical seats, forty national top-up seats, one ballot serving both — and the constitutional text preserves the national character of the proportional component. When GECOM erased FGM and the ALP from the ballots of entire regions because those parties had not fielded geographic constituency lists, it did not merely deny them constituency seats they had not contested. It denied tens of thousands of voters in those regions any means of casting a national top-up vote for legally approved parties — a consequence the statute nowhere plainly commands and the Constitution’s text resists. We argued then, and maintain now, that the Court of Appeal’s reasoning conflated two distinct electoral mechanisms, and that its tone — “most unmeritorious,” a burden on judicial time — was unworthy of a constitutional question of this gravity.

The reader should therefore understand our interest in the CCJ proceedings plainly: we believe the merits favour the appellant, and we want the merits reached.

II. The Starting Gun, Aimed at the Courthouse Door

It is precisely the reaching of the merits that the Attorney General’s submission is designed to prevent. Anil Nandlall’s argument to the Court was an argument about time and channels: once the President’s proclamation issues — once the starting gun fires — every grievance touching the election must travel through one channel only, the election petition under Article 163, with its strict statutory preconditions, its twenty-eight-day clock, and its jurisprudence of near-zero tolerance for procedural default. Fisher did not come by petition; therefore, on this argument, no court from the Court of Appeal upward has had jurisdiction to hear her at all.

Let us be fair to the argument, because it is not frivolous. The Attorney General rested on Ram v Attorney General of Guyana, the CCJ’s own decision from the no-confidence litigation, in which President Saunders traced the long settlement by which courts exercise only the electoral jurisdiction the Constitution ordains and Parliament delimits.^[5] And he invoked the lived national experience of 2020, when the discipline of that channel — wait for the results, then petition — helped repel the attempts to interrupt the count and stall the installation of a validly elected government. That jurisprudence is real, hard-won, and worth preserving. This Journal defended it then and does not disparage it now.

But watch what the doctrine does when it is aimed at this case. FGM has abandoned every relief that would disturb the 2025 results. No one is asking to unwind an election. What remains are the systemic questions we identified in October: whether GECOM’s interpretation of the Representation of the People Act can be squared with Article 160 and the constitutional guarantee of the franchise. The Attorney General’s answer is that even these questions are now trapped — pleaded originally as an election challenge, they must live and die by the election-petition channel the appellant never entered, and the CCJ should decline to touch them.

Consider the architecture this produces. A GECOM decision made weeks before polling day — determining who appears on the ballot — could be challenged only after the election, only through a petition, only within twenty-eight days, and only by pleadings surviving a strict-compliance regime in which the smallest defect is fatal. The category of dispute is what comparative constitutional law calls capable of repetition yet evading review. In October we warned of a democratic deficit; the jurisdictional argument now before the CCJ is the mechanism by which that deficit would be insulated from judicial scrutiny indefinitely. The starting gun becomes a gate that closes on the courthouse itself.

“A pre-election decision of GECOM would be unchallengeable before the poll, unreachable after it, and moot by the time fresh proceedings matured. That is not channel discipline. That is immunity.” — T.R.B.

III. What the Bench’s Questions Revealed

The exchanges at the hearing suggest the Court sees the difficulty. One judge pressed the Attorney General on whether the proclamation truly marks the dividing line he claims — whether it is his considered position that everything after that moment must flow through the petition channel. Another returned to the puzzle of the Court of Appeal’s own judgment: having declared it had no jurisdiction, that court nonetheless pronounced the appeal meritless — a detour the Attorney General dismissed as purely academic, but which a member of the CCJ panel gently defended as prudent practice for an intermediate court whose jurisdictional ruling might not survive review.

And, most tellingly for our purposes, the bench asked to understand the connection between the geographical lists and the national top-up list — the very conflation at the heart of our October critique. That the region’s final court is asking that question is itself a vindication of the proposition the Court of Appeal waved away: this was never an unmeritorious case.

In October we also warned that the million-dollar cost awards against Fisher would chill constitutional litigation, sending the message that citizens challenge electoral practices at their financial peril. That warning has been borne out. FGM’s leader has publicly acknowledged the significant legal burden of carrying this case to Port of Spain, even as she affirms that the fight is essential to breaking the closed circle of Guyana’s two-party politics.^[6] A constitutional democracy should not price fundamental-rights litigation as a luxury good. Whatever the CCJ decides, its treatment of costs will speak as loudly as its treatment of jurisdiction.

IV. Do Not Let the Gate Close

There is one point on which we find ourselves, unexpectedly, in partial agreement with the Attorney General. He told the Court that nothing prevents FGM from filing fresh proceedings, outside the election context, to test the constitutionality of GECOM’s interpretation before the next poll. We made the companion argument in October when we urged the National Assembly to guarantee all approved parties access to all regional ballots by legislative reform. Both concessions point to the same truth: even the doctrine’s most forceful defender accepts that the underlying question deserves an answer somewhere. The dispute is only over the forum and the clock.

But that concession cuts deeper than the Attorney General may intend. If the question is legitimate enough to be litigated tomorrow in fresh proceedings, it is legitimate enough that the region’s final court — with the parties before it, the record assembled, and the issues fully argued — should not strain to avoid it today. Judicial economy, access to justice, and the voters of Regions Seven, Eight, and Nine all point the same way.

The CCJ has honourable options short of disturbing any election. It can affirm the stability jurisprudence of 2020 while clarifying that Article 163’s exclusivity governs challenges to the conduct and results of elections — not every pre-election administrative interpretation by GECOM, forever. It can distinguish, as mature constitutional systems do, between a challenge that seeks to halt a count and a challenge, shorn of invalidation reliefs, that asks what the statute means for the next election. And it can say — as we said in October — that the right to vote is not contingent on the strategic decisions of political parties, and that a system in which a voter’s ballot choices shrink with her postcode sits uneasily with a Constitution that promises votes cast throughout Guyana.

“The Court of Appeal dismissed Fisher; it could not dismiss the democratic deficit the case named. The CCJ now decides whether that deficit gets a hearing or a tomb.” — T.R.B.

We said in October that we would continue to advocate for the widening of democracy’s circle until the promise of equal access to the ballot is fulfilled for every Guyanese citizen. Before the region’s final court, that advocacy has one immediate form: reach the merits.

Do not let the gate close.

References

1. Reynolds v. Sims, 377 U.S. 533 (1964), per Warren, C.J. Cited here for its statement of democratic principle; the case concerned legislative apportionment in the United States.
2. Guyana Business Journal. “Fisher v. GECOM — A Missed Opportunity for Democratic Progress: The Appeal Court’s Troubling Dismissal of Electoral Inclusion.” October 3, 2025. guyanabusinessjournal.com
3. Stabroek News. “CJ (ag) dismisses ballot case brought by FGM.” August 30, 2025. stabroeknews.com
4. News Room Guyana. “Appeal Court dismisses Forward Guyana Movement’s challenge against GECOM ballot exclusion.” October 2, 2025. newsroom.gy
5. Ram v Attorney General of Guyana [2019] CCJ 10 (AJ), per Saunders, P., on the special jurisdiction under Article 163 of the Constitution of Guyana and the exclusivity of the election-petition procedure.
6. Kaieteur News. “Walton proposes three-way opposition deal on GECOM seats.” June 29, 2026, reporting FGM’s continued pursuit of the ballot-access case before the CCJ despite significant legal costs. kaieteurnewsonline.com

Supported By

We are grateful for the partnership and support of individuals and organisations committed to advancing Guyanese and Caribbean development and human capital investment. Sponsors support the GBJ Sunday Essay as a whole; they play no role in commissioning, reviewing, or approving its content, and the analysis and conclusions are solely the author’s.

Individual Supporters Courtney Noel | All Te Networks | Corine Locke | Tony Harris | Roderick Alsopp | Dr. Michelle Luard | Clarence Bone

🇬🇾 Please support the Guyana Business Journal & Magazine today