Guyana: People, not Parliamentary, Sovereignty

We have been informed that the Caribbean Court of Justice (CCJ) will, on Tuesday, pronounce on what the rest of the media insist on sensationalising as the “third term case”.
The Richardson case, as decided by our High and Appellate Courts, goes to the heart of the constitutional foundation of the “rule of law” — contraposed to the always precarious “rule of men” — to govern ourselves, by stating clearly that sovereignty resides ultimately in the Guyanese people; and that this sovereignty cannot be transferred to even the Legislative representatives of the people without their explicit consent in a referendum.
Sovereignty, of course, is a foundational concept in our inherited British notion of the rule of law, since it had to do with where ultimate power was located, starting from the Monarch (“Sovereign”), who originally had absolute power. The famous statement of Louis XIV, “I am the state!”, exemplifies this latter condition. It was no different in Britain.
The history of sovereignty is one of a gradual whittling down of that power, starting from the 13th century, when the nobility forced King John to accept the Magna Carta to the Glorious Revolution of 1688, after which the Earl of Shaftesbury could declare, “The Parliament of England is that supreme and absolute power which gives life and motion to the English Government.” Sovereignty was in the representatives of the people, not in the people in Britain.
A century later, however, when the US was launched, its founding fathers explicitly declared that sovereignty resided in the people, with aspects of it — as specified in a written constitution — delegated to the organs of the state, including the Government. Some think it is because Britain does not have a written constitution that Parliament is supreme, but the conventions that govern its present workings could easily have been broadened to further devolve sovereignty.
When Guyana, and most of the former colonies, became independent, they were given, or enacted, Constitutions that followed the US view of the locus of sovereignty: it resided in “the people”. Unlike the case in Britain, where the court cannot overturn an act of Parliament, here in Guyana, with its delegated sovereignty from the people as co-equal to Parliament, this can be done under the principle of Judicial Review, if the Act violates the Constitution.

In the past, this application was confined to specific stipulations of the Constitution that purported to spell out areas of national life with which the executive could not transgress: negative freedoms. More recently, however, the Supreme Court of India, and several others in former British colonies, such as Belize, insisted that the Legislature could not pass amendments to the Constitution that affected its “basic structure”. This encompassed fundamental doctrines laid down by the people in a Constituent Assembly, such as the locus of sovereignty; fundamental rights of the people; separation of powers. Such changes should be ratified by the people in referenda, since those doctrines are fundamental to the ethos of the Constitution as a whole.
It was from this perspective that Justice Ian Chang determined our Parliament cannot restrict the choices available to the sovereign people as to whom they may chose as their president; as Article 90, by Act No. 17 of 2001, which it passed, did. He ruled that the people themselves should make such a decision via a referendum.
In Britain, however, where Parliament is supreme, as their doyen of Constitutional law summarised, Parliament had “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”.
But while Britain has centuries of tradition that make them comfortable with that state of affairs, our history in the short half a century since independence should disabuse us of being sanguine with placing all powers in the hands of our representatives.
We do not want a repetition of what happened between 1968 and 1992.