The Trinidad-based Caribbean Court of Justice (CCJ) on Tuesday ruled 6-1 in the Attorney General v Cedric Richardson case, holding that the presidential term limit in Guyana is constitutional.
The Court overturned the decision of the Guyana High Court and the Guyana Court of Appeal, which had ruled that amendments to the Guyana Constitution, which essentially limits the number of times a person could be elected President of Guyana were improperly done.
All seven Judges of the CCJ heard the appeal. The majority decision was delivered by separate judgements from CCJ President, Sir Dennis Byron; Justice Adrian Saunders; and Justice Jacob Wit. On the other hand, Justice Winston Anderson offered a dissenting judgement.
Cedric Richardson had originally challenged the amendment on the basis that he should have the right to choose whomsoever he wanted to be President. He also stated that the amendment disqualified Jagdeo, who had previously served two terms as President, from running for office in upcoming elections.
Richardson 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.
He had noted in his challenge that with the changes, then voters of Guyana would have a choice of four classes of persons that were barred by Act 17 of 2001. Amended Article 90 had specified that (A) only a citizen by birth or parentage can qualify to be the President; (B) a person must be residing in Guyana on the date of nomination for election; (C) a person must have been a resident for seven years immediately before that date, and (D) citizens of Guyana who have served for two terms as President were barred from re-election.
In the ruling on Tuesday, the majority’s view was that Articles 1 and 9 of the Guyana Constitution did not confer on citizens an unlimited right to choose the Head of State. The Court vindicated that democratic governance allowed for reasonable qualifications for eligibility to be a member of the National Assembly and hence to be President. This was supported by objective, international standards of what a democratic state entails.
The CCJ also stated that new qualifications can be introduced by valid constitutional amendments and that 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 having to hold a referendum to decide on this matter.
Justice Winston Anderson, in his dissent, agreed with the Court of Appeal of Guyana that the amendment was unconstitutional. He claimed that the decision 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 said it was an unacceptable constraint on the sovereignty of the people of Guyana to choose their President as provided for in Articles 1 and 9 of the Constitution of Guyana.
The CCJ examined the historical background of the amendment to the Constitution and in its ruling noted that it was passed unanimously by the National Assembly during Bharrat Jagdeo’s term in office.
The CCJ said it 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. Rather, the Constitution was amended after extensive national consultation and therefore represented a sincere attempt to enhance democracy in Guyana.
Guyana’s Court of Appeal ruled in February 2017 that the constitutional amendments by Parliament to limit the number of times a person could serve as President were unconstitutional.
During that February decision, then acting Chancellor of the Judiciary, Justice Carl Singh, was supported by Justice of Appeal BS Roy in upholding then acting Chief Justice Ian Chang’s decision that the amendments were unconstitutional.
The decision which the Appellate Justices upheld signalled that an amendment to the Constitution on presidential term limits, 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.
This enactment was recommended by an across-the-board Constitutional Reform Committee of 2000/2001. This Committee received both Government and Opposition input, and the reform received bipartisan support.
Attorney General Williams had appealed the Appeal Court’s landmark ruling in February 2017 that declared that 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 be altered only by a referendum of the people.
AG Williams and his colleague, Raphael Trotman, challenged the ruling in the CCJ. The decision to refer the matter to the CCJ was presided over by acting Chancellor Yonette Cummings-Edwards, Appellate Judge Dawn Gregory and then High Court Judge Rishi Persaud.
The appeal was successful.