Government has instituted measures that would have its sovereignty of the people appeal case heard in the Caribbean Court of Justice (CCJ).
State Minister Joseph Harmon has said that an appeal in this regard has been filed, “but we have to await now the written judgement by the Court of Appeal in order to proceed further. A notice of appeal has been filed; we are awaiting the written judgement of the court”.
Government had, earlier this year, decided to have the case heard in the CCJ after the Appeal Court in Guyana had dismissed its appeal against the ruling of former Chief Justice (ag) Ian Chang – which had stated that in Guyana, sovereignty resides in the people, and not in the Parliament.
Justice Chang’s ruling meant that certain fundamental clauses in the Constitution, which serve to define its substantive nature, could only be altered by a referendum of the people.
The ruling was appealed by then Speaker of the National Assembly, Raphael Trotman, and now by Attorney General Basil Williams.
The constitutional challenge case brought by Georgetown resident Cedric Richardson in February 2015 had sought the court’s interpretation of the National Assembly’s changes to Article 90, as those related to four restraints on the freedom of choice by citizens at national elections. 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 his 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 a referendum on the amendment should not have been held, instead of the two-third majority in the National Assembly having the power 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 Trotman, both of whom were named as respondents in the court action. They asked that the ruling be “wholly set aside”.
Appellate Court’s decision
When the matter was heard in the Court of Appeal, that court handed down a split decision, whereby Chancellor of the Judiciary, 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, while the then acting Chief Justice Yonette Edwards-Cummings found that the term limit was not unconstitutional, hence she upheld the State-sponsored appeal.
Justice Edwards-Cummings had 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 amendment, nor did such an act require a referendum, since Articles 1 and 9 of the Constitution were not affected by the change.
However, in his decision, Justice Singh contended that the amendment “watered down or diminished” the opportunity of Guyanese to elect the President of their choice, adding that such changes could only be effected by a referendum of the people.
In his conclusion, the Chancellor posited that he was cognisant of the political consequences that derive from the appeal, but, at the same time, could not relinquish the court’s fundamental responsibility, which was to pronounce on the meaning and intent behind the country’s constitutional provisions.
Meanwhile, Justice Roy wrapped up the near three-hour hearing with one sentence, indicating that having read the former Chief Justice’s ruling, he too agreed with the decision of the High Court.
Voided
Act No 17 of 2000, which was struck down by then acting Chief Justice Chang, as being unconstitutional, a decision upheld by the Court of Appeal, imposed qualifications upon the presidency that are restrictive, discriminatory and which ultimately strike at political democracy and individual freedoms.
It imposes the following restrictions, 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 citizenship. 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.
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.
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.
