Wednesday was a red-letter day in the gradual expansion of the democratic rights of the Guyanese people from their origins in slavery and indentureship which defined them legally as chattel and “bound labour”. The Court of Appeal reaffirmed that in this country, ultimate power or sovereignty resides in the people, and this cannot be delegated when it comes to altering defining features of the Constitution, which is the supreme law of the land.
It is only fitting that today we commemorate “Republic Day” to acknowledge all those who fought for the Guyanese people to be in charge of their destiny and fate. The word “republic” is from the Latin “res publica” or “public thing” – indicating that in such a state in the supreme power rests in the body of citizens – the “public”.
Guyanese should be very clear about what this decision is all about since Justice Ian Chang took elaborate care to explain the basis of his original decision, which was just upheld against a challenge by the A Partnership for National Unity/People’s National Congress Government. The case has unfortunately been dubbed by some elements in the media as the “third term case” because, even though a change in the Constitution by the representatives of the people restricted the choice of the people by four criteria –- the media only latched on to one, that which restricted a person to only serving for two terms as President of Guyana.
The other restrictions were to also declare unqualified to run for the presidency, citizens of Guyana not resident in Guyana on Nomination Day; citizens of Guyana resident in Guyana on Nomination Day but who have not been continuously resident in Guyana for seven years prior to that date, and citizens of Guyana by registration. This restriction of the right to choose the individual who would be Head of State and head of Government by the Guyanese people could not be capriciously restrained because what it signals, goes to the very nature of Guyanese republicanism in defining our state.
Such a change, Chief Justice Chang ruled, should be ratified by the people themselves in a republic. Chancellor of the Judiciary Carl Singh, ratified this unequivocally, “The people are entitled, in keeping with democratic principles to freely elect their representatives” and as such Articles 1 and 9 of Guyana’s Constitution could only be changed by referendum to achieve legal validity and efficacy.
It was an inalienable right that could not be delegated away since it would change the nature of the sovereignty that the Constitution confirms as residing in the people. It was as if the owner of a clothing store delegated the running of his establish to a set of managers who were authorised to make day to day decisions. But a decision that would alter the very nature of the business – such as changing it to a fish store – should be ratified by the owner. The people of Guyana are the “sovereign” of Guyana – its “owners” and the Court of Appeal has just confirmed that they must give consent via a referendum on changes that implication for changing fundamental aspects of the peoples’ power of choice.
The attempt by the Attorney General Basil Williams to have the Court of Appeal declare the decision by Chang void because of a reference to “Article 17 of 2001” rather than Article 17 of 2000 was dubbed by Chancellor Carl Singh as “incredible”. But it was more than that: the Government through its chief legal counsel was demonstrating that they are willing to ignore modern developments in the interpretation of constitutional law away from even the now increasingly discarded positivist stance and take it back to the Dark Ages when if the writ had the most inconsequential error, the case was thrown out.
On this Republic Day 2017, Guyana has been confirmed as increasing the area of brightness that is defined explicitly by our enumeration of our Bill of Fundamental Rights into the penumbra of their concrete application.
The right to free choice in electing their representatives is not a choice to be cribbed and cloistered.
