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No third term for Guyana's presidents

 

 

By Rehanna Ramsay

GEORGETOWN
Petroleumworld 06 27 2018

A majority 6-1 ruling handed down by the Caribbean Court of Justice (CCJ) is set to have far-reaching effects on the current and future Presidents of Guyana.

The CCJ, a Trinidad-based final appellate court, in a majority decision yesterday upheld an amendment to Constitution, which bars Presidents of the Cooperative Republic of Guyana from serving more than two terms in office.

The ruling, in essence, set aside the judgments of two lower Guyanese Courts, (High Court and Court of Appeal), which handed down decisions in favour of Cedric Richardson, a citizen of Guyana.

Richardson had moved to the Court to challenge the amendment of the constitution, saying that it trampled his right to choose whomsoever he wants to be President. In his court case, he made specific mention to Bharrat Jagdeo, who had been President of Guyana twice before.

The two-term restriction created by amendments to Article 90 of the Constitution was enacted in 2001 by Jagdeo, who was President at the time.

Yesterday's decision effectively halted any thoughts by Jagdeo to run for President at the next General Elections slated for 2020.

Through his lawyers, the applicant (Richardson) had successfully argued that the amendment was inconsistent with his rights under Articles 1 and 9 of the Constitution which declared that Guyana was a “sovereign democratic state”.

He said that in order for the National Assembly to amend the Constitution, the amendment had to be supported by a majority vote in a referendum. He said that no referendum was held before the amendment in 2000, and therefore the amendment was unconstitutional.

The amendment, which was made to the Constitution of Guyana in 2000, also added the further qualifications that a candidate for President must be a Guyanese by birth or parentage, residing in Guyana on the date of nomination for election, and continuously resident in the country for a period of seven years before Nomination Day.

At the High Court, former Chief Justice (ag.) Ian Chang, and at the Court of Appeal Justice former Chancellor Carl Singh and Justice B.S Roy – agreed with Richardson. They said that an essential feature of a sovereign democratic state was the freedom enjoyed by its people to choose whom they wish to represent them.

The amendment was therefore in their opinion, unconstitutional, because it “diluted the opportunity of the people to elect a President of their choice.”
Justice Yonette Cummings-Edwards, who also sat on the Appellate Court panel, gave a dissenting opinion.

In the CCJ, Guyana's Attorney General Basil Williams relied heavily on the Justice Cummings-Edwards' view.
RULING

Yesterday, a majority decision was delivered by separate judgments from Sir Dennis Byron, the Court's President, Justice Adrian Saunders, Justice Jacob Wit, Justice David Hayton, Justice Denys Barrow and Madame (Mme.) Maureen Rajnauth-Lee. Justice Winston Anderson offered a dissenting judgment.

In delivering the judgment, Sir Dennis noted that the appeal was heard by all seven judges of the CCJ..

He explained that the Court, after examination of the historical background of the amendment to the Constitution, recognised that it was passed unanimously by Guyana's National Assembly during Jagdeo's term in office.

The CCJ President said that the Court felt that it was clear that the amendment did not emerge from the desire of any political party to manipulate the requirements to run for the office of President.

“The Constitution was amended after extensive national consultation and therefore represented a sincere attempt to enhance democracy in Guyana.
The majority's view was that Articles 1 and 9 did not confer on citizens an unlimited right to choose the head of state.”

According to the CCJ, the National Assembly had the power to amend the Constitution by a vote of at least two-thirds of all members of the Assembly, without holding a referendum.

The Court also outlined guiding principles for assessing when new amendments to the Constitution did not require the holding of a referendum.

Ultimately, the test was whether any such new amendments were “reasonably justifiable in a democratic society.”

To determine this, any court called upon to assess such a matter should “look to the history, substance and practical consequences of the amendment, to the reasons advance for it, and to the interests it serves”.
During a hearing at the CCJ, Attorney General Basil Williams had noted that the origin of the presidential term limit amendment dated back to political unrest in 1997.

Williams had highlighted the signing of a peace pact between the People's Progressive Party /Civic (PPP/C) and the then-opposition People's National Congress, (PNC) in 1998 named the Herdmanston Accord.

That pact, Williams said, provided the constitutional reform after broad-based national consultations.

The CCJ President had asked Attorney General and Richardson's lawyer to compile and submit documents to the Court to support these arguments.
Justice Anderson, in his dissent, agreed with the Court of Appeal of Guyana that the amendment was unconstitutional, because it resulted in the exclusion of probably thousands of otherwise eligible Guyanese citizens from being elected as President, without seeking the approval of the people by referendum. He considered that this was an unacceptable constraint on the sovereignty of the people of Guyana to choose their President as provided for in Articles 1 and 9.

DEMOCRACY

In the ruling, the CCJ examined Guyana's history as it relates to being a democratic State.

The Court noted that the best way of extracting the relevant meaning of “democracy” and the sovereign “power of the people” in Guyana is through an analysis of the internal discussion and struggles in Guyana as it relates to these concepts rather than from the importation of concepts from outside.

The idea of the democracy and sovereignty of the people has been extended in the public domain for the last three-quarters of a century.
These are recent and modern concepts in Guyana, because prior to 1953 they could not be applied to Guyana under the British colonial regime that governed it. In looking at the history of democracy in Guyana, this Court was assisted by the report of the Constitutional Reform Commission presented to the National Assembly of Guyana on 17 July 1999 which was tendered. It and its contents were not challenged, and we have regarded it as an authoritative source of the facts stated in it,” the CCJ added.

ARGUMENTS

In March, in his representation of Richardson, Trinidadian Senior Counsel, Douglas Mendes, noted the importance of fighting the case on its merits and delay could not be raised as a defence. “The delay cannot affect or cannot constitutionalise an unconstitutional statute.”

Mendes said delay cannot constitutionalise a void act, and it should not be used as a basis to throw out the case, because it would be unfair to use it to protect the unconstitutional law.

“That is wrong, it is wrong and unfair, and it is contrary to the rule of law,” he said in reaction to the decision by the Attorney General Basil Williams to raise that as an issue at that time, instead of in Guyana's High Court and Court of Appeal.

The team representing the State of Guyana – Attorney General, Basil Williams SC, Solicitor General, Kim Kyte, Barbadian Queen's Counsel Hal Gollop and Attorney Ralph Thorne, nonetheless told the panel of judges that among other things, the amendment could have been made by Parliament and not only via referendum.

Elaborating on this point, Queens' Counsel Gollop noted that the Court of Appeal – specifically former Chancellor (ag) Carl Singh – adopted a faulty definition of the term sovereignty

Referencing Article 9 of the Constitution, Gollop noted that the law clearly states that “sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution.”

Gollop told the Court, therefore, that the constitution gives the people the right to have their representatives in Parliament exercise that sovereignty on their behalf.

He noted that the Appeal failed to show how that power was contravened
or taken away from the people.

The QC asserted that that sovereignty was never taken away from citizens, but rather transferred those who represent them.

In his submissions, Attorney General Williams noted that two essential issues that should be considered in the matter are sovereignty and democracy. He noted that the Act 17 of 2001 was passed following widespread consultation and a unanimous decision in Parliament.
In fact, he noted that the Act was assented to by the then-President Bharrat Jagdeo, who was the subject in the matter.

Responding to inquiries from the Judges in relation to the background of the amendment, the AG told the Court that the Act was drafted following post-election trauma.

He explained that there was an agreement between the two political groups towards the de-escalation of conflict pursuant to deliberations and consultations were undertaken by a CARICOM Mission.

Guyana's Solicitor General, Kim Kyte made presentations on the issue of delays. She noted that while there is no limit in Guyana's Constitution to bringing constitutional reliefs, other courts in the Caribbean and the CCJ itself could not wait for even as little as five years and in this case, against the constitutionality of term limits.

“This court has an inherent jurisdiction to protect itself from the abuse of process. The consequence is that it can be seen as acquiescence to the validity of the Act,” Kyte said.

The Solicitor General had urged the CCJ to consider, too, the negative impact of upholding the Guyana Court of Appeal decision on the establishment of the various independent commissions on ethnic relations, women and gender, indigenous peoples and human rights.

“It will whittle away the various constitutional commissions,” she had told the Court.

________________________

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