Now that the case of Cedric Richardson vs the Attorney General of Guyana and the Speaker of the National Assembly, has been referred to the Caribbean Court of Justice (CCJ), we repeat the issues that are at stake.
The Plaintiff, Richardson, essentially sought to determine the extent and nature of the power of Parliament to amend the Constitution of Guyana. While he conceded the Guyana Constitution, like all modern Constitutions, made provisions for amendments (here by Art 164 (2)), if the change sought alters the fundamental structure of the Constitution, this must be approved by the people through a referendum rather than the 2/3 vote of their representatives as stipulated by the Constitution.
While Guyana acknowledges the Constitution as the “Supreme Law” of the land, ultimate sovereignty still resides with the people, and even the Constitution cannot abridge this. Richardson contended that Acticle 17 of 2001, placed restrictions on their [the people’s] right to choose specific candidates and such a restriction on their freedom to choose, could only be approved by the people themselves.
What must be made clear from the onset is, contrary to what the media insists on labelling the “Third Term” appeal, the judgement includes three other restraints that the objected-to constitutional change of 2001 placed on the republican rights of Guyanese citizens to vote for a candidate of their choice. These were succinctly spelled out as follows by Justice Chang:
“The purported alteration of Article 90 by Act No 17 of 2001, in substance and effect, undoubtedly diminishes the democratic rights of the electorate in electing a person of their own choice as President, by excluding from presidential candidature (1) Citizens of Guyana not resident in Guyana on Nomination Day; (2) 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; (3) Citizens of Guyana by registration and 4) Citizens of Guyana who have served for two terms as President.
As such, the alteration by Act No 17 of 2001 purports to curtail the people’s electoral democratic choices and to offend the declaration in Article 1 that Guyana is a democratic State – in which the sovereignty resides in the people Article 9). This is precisely why, for the purpose of any alteration of Articles 1 and 9, the voice of 2/3 of the elected members of the National Assembly is not the voice of the people.”
Justice Chang’s interpretation of the constitutional provision, later affirmed by the Court of Appeal, rested on a “normative” substantive “basic structure” values rather than the older, procedurally-driven Liberal view of Constitutions as merely “descriptive”. While he cited two cases – the Belize case Bowen vs The Attorney General BZ 2001 SC 2, and the Indian case Kesavananda Bharati vs the State of Kerala (1974) 1 SCC (Jour) 3 to support his ruling, it appears there was a refusal by his critics to deconstruct the difference between the two approaches and to accept as the Indian Supreme Court did, “while there was no implied limit to constitutional amendment, the very nature of the word “amend” meant that Parliament could not abrogate or destroy the foundation or the basic structure of the Constitution.”
In the Liberal procedurally driven perspective on Constitutions, the protection of the negative freedom of the citizens, adumbrated as “fundamental rights”, against the Leviathan state, is paramount, But as stated by the theorist Jurgen Habermas, in the substantive republican view, “…the state’s raison d’etre does not lie primarily in the protection of equal private rights but in the guarantee of an inclusive opinion- and will-formation in which free and equal citizens reach an understanding on which goals and norms lie in the equal interest of all.”
It is this insistence that it is the will of the people must be untrammelled in the exercise of their positive freedom, that Justice Chang’s ruling rests. Only the people can alter the basic structure of the Constitution. Ultimately the ruling asserts: “Power to the people.”