The Trinidad-based Caribbean Court of Justice (CCJ) began the first of several hearings into Government’s appeal of the Constitutional challenge to the sovereignty of the people case on Monday.
Guyana’s Court of Appeal in February 2017 ruled in favour of applicant, Cedrick Richardson that the constitutional amendments by Parliament to limit the amount of times a person can serve as President were unconstitutional and that such
Cedric Richardson lawyer, Senior Counsel, Douglas Mendes making his submissions at the CCJ on Monday
changes should have been enacted via referendum.
Attorney for both sides presented opposing arguments on Monday and sought to convince the panel of judges to decide in their favour.
Attorney General, Senior Counsel Basil Williams, who led the Government team to the CCJ said that it was the previous Government that took the legislation to the National Assembly and received full support in adding term limits to the Constitution of Guyana.
Williams was grilled by the CCJ judges and several questions were raised during his submissions, which caused him to fumble a few times. He based most of his arguments on the Articles of the Constitution that were amended to block the third term and claimed that the ruling by the Court of Appeal was flawed.
The CCJ was also informed by the Attorney General that implementing a third term limit was part of the Constitutional Reform process in Guyana. Williams was therefore asked to supply evidence to support his argument about that process to the Court, since it was not part of the original submissions.
AG Basil Williams and his legal team
In her arguments, Solicitor General Kim Kyte, contended that there has been no challenge since the amendment was made to the Constitution and therefore it can be assumed that the changes were accepted.
She told the CCJ that there will have several negative impact on the establishment of the various independent commissions if they upheld the Court of Appeal decision.
“It will whittle away the various constitutional commissions,” Kyte said, listing Ethnic Relations, Women and Gender, Indigenous Peoples, and Human Rights Commissions as those to be affected.
But Senior Counsel, Douglas Mendes, who is representing Richardson, argued that a delay in the process of challenging the case could not be used as a defence. “The passage of time does not purify a law that is unconstitutional…delay cannot constitutionalize a void act,” he stated.
The top Trinidadian attorney noted that the argument was never brought up during the proceedings in Guyana at the High Court and Court of Appeal, and therefore it has no basis for the matter before the CCJ. “The delay cannot effect or cannot constitutionalize an unconstitutional statute,” Mendes contended.
In his submissions, he said Guyana courts were correct in their ruling. He made reference to a referendum needed to take place rather than the Parliament amending the Constitution on its own.
Representing Government also was Barbadian Senior Counsel Hal Gallop, who maintained that sovereignty of the Constitution and the amendments that allowed the changes to the law must be protected.
Gallop argued that the amendments were done in the proper way as prescribed by the same Constitution, where the Parliament deiced on the changes instead of the citizens of the country.
Attorney Ralph Thorne, another Barbadian representing Government, was however warned against trying to convince the court with his own values.
He argued that the Court of Appeal failed to define the transition from capitalism to socialism but instead deals with sovereignty. According to him, the Court should be heedful of defining sovereignty in a way that may have consequences for Parliament.
Thorne argued strongly that the term limits were introduced in Guyana to defend the integrity of the system and create an opportunity for many instead of one person.
The decision, which the Appellate Justice upheld in 2017 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 included both Government and Opposition input, and the reform received bipartisan support.
In 2014, private citizen Cedric Richardson had filed the challenge, arguing that Act 17 of 2001, which was passed by a two-thirds majority of the National Assembly, unconstitutionally curtailed and restricted his sovereign and democratic right and freedom as a qualified elector to elect a former President as the Executive President of the Cooperative Republic of Guyana. Contending that the limit was unconstitutional and illegal, Richardson also wanted the court to determine whether the amendment with a referendum should not have been held, instead of the two-thirds majority in the National Assembly having the power to decide to limit the number of terms.
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.
After several months in the court, former Chief Justice (ag) Ian Chang ruled in favour of Richardson’s argument, saying that the term limit on presidents is unconstitutional without the approval of the people through a referendum.
However, the decision did not sit well with Attorney General Basil Williams and former Speaker of the National Assembly Raphael Trotman, both of whom were named respondents in the court action. They asked that the ruling be “wholly set aside”; but then Chancellor of the Judiciary (ag), Justice Carl Singh, also upheld the High Court’s decision, arguing in the Appeal Court ruling that a decision on the term-limit rested with the people via a referendum, and not the National Assembly. He had sought to impress the point that people should choose whom they “please to govern them,” and noted that this is essential to all other rights.
During the February 2017 decision, Justice Singh was supported by Justice of Appeal BS Roy in upholding Justice Chang’s decision. Current Chief Justice (ag) Yonette Cummings-Edwards, who also sat on the panel, had given a dissenting judgement.
