… favourable to presidential 3rd term
By Vahnu Manikchand
In a majority decision, the Court of Appeal on Wednesday dismissed a State-sponsored appeal against former Chief Justice (ag) Ian Chang’s ruling that in Guyana, sovereignty resides in the people and not in the Parliament, and as such, certain fundamental clauses in the Constitution that serve to define its substantive nature, can only be altered by a referendum of the people.
This ruling ultimately means that an amendment to the Constitution, which was enacted when the National Assembly altered Article 90 via a two-thirds vote in 2000, needs a referendum to make a final decision, since to proceed otherwise would be for the National
Assembly to deny the citizens of Guyana an inalienable right.
The Government immediately announced they will challenge the ruling by appealing to the Caribbean Court of Justice (CCJ) within 30 days.
If that appeal fails, then the voters of Guyana would have a choice of four classes of persons that were barred by Art 17 of 2001. These classes are: (A) that only a citizen by birth or of parentage can qualify to be the President; and (B) that a person must be residing in Guyana on the date of nomination for election and must have been a resident for seven years immediately before that date and Citizens of Guyana who have served for two terms as President.
Challenge
The case was filed back in February 2015 by Georgetown resident, Cedric Richardson, seeking the court’s interpretation of the amendment. Richardson argued, through his lawyers, Emily Dodson and Shawn Allicock that the amendment, Article 17 of 2000, unconstitutionally curtails and restricts his sovereign and democratic right and freedom as a qualified elector to elect a specific person of their choice as the Executive President of the Cooperative Republic of Guyana.
Richardson had also contended that the limit was unconstitutional and illegal. He sought
the court’s interpretation to determine whether the amendment with referendum should not have been held, instead of the two-third majority in the National Assembly having the powers to decide the limit on the number of terms.
Justice Chang had ruled in July 2015 that the alteration of Article 90 by the Act No 17 of 2000, in substance and effect, undoubtedly diminishes the democratic rights of the electorate in electing a person of their own choice as President.
The former acting Chief Justice noted that such an amendment needs a referendum and is invalid and without legal effect for reason of non-compliance. He further ruled that Act 17 of 2000 seeks to dilute the pre-existing democratic rights of the electorate to elect a President of their choice. As such, while the Constitution provides for representative democracy, such representative democracy cannot encroach on popular sovereignty from which it derives and which is entrenched by the requirement of the referendum.
However, the High Court’s decision was appealed by the Attorney General’s Chambers and former Speaker of the National Assembly Raphael Trotman, both of whom were named
respondents in the court action. They asked that ruling be “wholly set aside”.
Appellate Court Decision
Wednesday’s ruling on the appeals was handed down at the Appeal Court in a split decision, where Chancellor Justice Carl Singh and Justice BS Roy upheld former Chief Justice Chang’s ruling that the term limit was unconstitutional, thus throwing out the appeal; whilst acting Chief Justice Yonette Edwards-Cummings, on the other hand, found that the term limit was not unconstitutional, hence she upheld the State-sponsored appeal.
She further ruled that the fundamental rights of citizens to choose and elect a President of their choice had not been interfered with or diminished by the passing of the amendments, nor does such an act require a referendum, since Articles 1 and 9 of the Constitution were not affected by the change.
Furthermore, she pointed out that citizens passed on constituent power of their sovereignty onto their Parliamentary representatives, who use it to amend the Constitution within the various levels of entrenchment. “The people of Guyana in whom sovereignty lies exercise their sovereignty through representatives of Parliament and Local Democratic organs… and so the amendment did not alter, dilute, affect or amend Articles 1 and 9 of the Constitution of Guyana,” the acting Chief Justice outlined.
However in his decision on Wednesday, Justice Singh contended that the amendment “watered down or diminished” the opportunity of Guyanese to elect the President of their choice, which adding that such changes could only be effected by a referendum of the people.
“The respondent (contended) that because Act No 17 of 2000 infringes Article 1 and 9 of the Constitution, it had to be submitted to the people for their approval as a constitutional requirement and that Act (No 17 of 2000) therefore lacks constitutionality because it was not so submitted… The approval of the people needed to be obtained in order to breathe life into Act No 17 of 2000,” he noted.
The Chancellor further rejected an “incredible” request by the Attorney General (AG) to declare that the proceedings were void from the inception since reference was made to Article 17 of 2001, which is non-existent, instead of Article 17 of 2000. According to Justice Singh, it was merely “an error” and no evidence was shown to prove that it had prejudiced or disadvantaged any of the parties.
Justice Singh further rejected the perception by the AG that Richardson lacked standing in the matter and went onto to also reject objections to the originating summons.
In his conclusion, the Chancellor posited that he is cognizant of the political consequences that derive from the appeal, but at the same time cannot relinquish the court’s fundamental responsibilities which is to pronounce on the meaning and intent behind the country’s constitutional provisions.
Meanwhile, Justice Roy wrapped-up the near three-hour long hearing with one sentence, indicating that having read the former Chief Justice’s ruling, he too agreed with the decision of the High Court.
Reactions of Parties
Once again, the ruling handed down by the court did not go down well with the appellants. To this end, Attorney General Basil Williams indicated to media operatives that he will be further appealing the decision at the CCJ.
“It was a divided court, it wasn’t unanimous and I believe that we have good grounds to go to the CCJ… It’s important that these things are finally resolved,” he posited.
Meanwhile, Attorney Roycedale Forde, representing Trotman, also indicated his intention to challenge the Appeal Court ruling within the 30-day timeframe allowed.
On the other hand, Attorney Shawn Allicock, who represented Richardson, expressed his confidence that any further challenge to the Chief Justice’s ruling will be similarly dismissed.
Effect of Art 17 Restrictions now voided
Act No 17 of 2001, which was struck down by Chief Justice Chang, as being unconstitutional, a decision upheld by the Court of Appeal yesterday, imposed qualifications upon the Presidency, that are restrictive, discriminatory and which ultimately strike at political democracy and individual freedoms.
It imposes the following restriction, which were not part of the 1980 Constitution:
It is clear that (A) precludes naturalised citizens who are not of Guyanese parentage from being qualified to be President. So, irrespective of how long such a person may have been residing in Guyana and notwithstanding the outstanding contribution that person may have made to national development and to the welfare of the Guyanese people, and although that person is a citizen of Guyana and would be qualified for all the rights and privileges accorded to a Guyanese citizen, such a person is denied the right to vie for the highest office of this land, the Presidency. Such a disqualification is not only unfair and without any rational basis, but it is also discriminatory against thousands of naturalised Guyanese citizens. The point would be best made by pointing out that had this provision been in place in 1997, Janet Jagan would have never qualified to be President of Guyana.
Guyana has a large diasporic community estimated to be as large as the population of Guyana itself. Hundreds of thousands of Guyanese maintain dual residency and citizenships. They own and operate businesses in Guyana and overseas. They own properties in both places. They contribute in multiple ways and significantly, to the Guyanese economy and to the lives of their relatives, friends and family living in Guyana.
Under (B) above, these hundreds of thousands of Guyanese living overseas are disqualified from the Presidency because to qualify, one has to be resident in Guyana continuously for seven years prior to the elections. Again, such a disqualification is not only unfair and without any rational basis, but it is also discriminatory against hundreds of thousands of Guyanese living overseas.
Perhaps, the most fundamental deficiency of the said amendment is that it restricts the right of every single elector of this country from electing a person of their choice to be the President. This is so because the combination of (A) and (B) above, disqualifies hundreds of thousands of Guyanese from being elected to that office and by extension deprives hundreds of thousands of the electorate, the right and freedom of electing them.
