A month after acting Chief Justice Ian Chang ruled that the presidential term limit was unconstitutional, appeals have been filed to challenge the decision on the grounds that the judge erred in law by finding that a referendum was needed to effect the restriction.
Solicitor-General Sita Ramlal, on behalf of the Attorney-General (AG), and attorney Roysdale Forde, who is representing former Speaker Raphael Trotman, both filed their appeals last Friday.
A date for a hearing is still, however, being worked on.
Cedric Richardson, the defendant in the appeal, had petitioned the court on the question of the legality of the presidential term limit created by amendments to Article 90 of the constitution that were enacted in 2001 after the bipartisan constitution reform process. He had argued that barring two-term presidents like Bharrat Jagdeo from holding office restricts the voters’ choice of candidates and such a restriction could only be effected through a referendum.
On July 9th, Justice Chang ruled that the term-limit is unconstitutional without the approval of the people through a referendum.
While noting that the AG is dissatisfied “with the whole of the decision,” Ramlal has cited five grounds of appeal and asked that the ruling be wholly set aside.
In the notice of appeal, Ramlal contends that the Chief Justice erred and misdirected himself in law when he ruled that the National Assembly, which passed Act. No.17 of 2001 purporting to alter Article 90 of the constitution by way of a two-thirds majority vote of all members, was unconstitutional and of no effect as it failed to comply with Article 164(2)(a).
Another ground for the appeal is the contention that Justice Chang erred and misdirected himself when he ruled that the purported alteration of Article 90 by Act No. 17 of 2001 in substance and effect “diminishes the democratic rights of the electorate in electing a person of their own choice as president by excluding from presidential candidates citizens who have served for two terms as a president.” Justice Chang had held that the purported alteration curtails the people’s electoral democratic choices and offends the declaration in Article 1 that Guyana is a democratic state in which sovereignty resides in the people (Article 9) and the alteration of Article 1 and Article 9 could not have been done by two-thirds majority of the elected members of the National Assembly by referendum.
Ramlal also contends that Justice Chang erred and misguided himself when he posited that the Proviso to Article 164 (2)(b) of the constitution affected the purported amendment to Article 90 insofar as it seeks to “trench on and dilute” the pre-existing democratic right of the electorate to elect as president a person of their own choice and is invalid and without legal effect for reason of noncompliance with Article 162 (2) (a) and or repugnancy with Article 1 and Article 9, both of which require a referendum for the amendment for any alteration.
The fourth ground, according to Ramlal, is that the Chief Justice erred and misguided himself when he held that while the constitution provides for representative democracy, such representative democracy cannot trench on popular sovereignty from which it derives and which is entrenched by the requirement of a referendum.
The final ground of Ramlal’s appeal is that Justice Chang erred in law in not satisfying himself that the court had jurisdiction to grant the reliefs sought by the plaintiff.
Meanwhile, Trotman’s appeal lists 16 grounds, including those cited in Ramlal’s filing.
Also expressing dissatisfaction with the “whole decision,” the filing by Forde states that that the judge erred in law when he held that there can be no substantive addition to the provisions of the constitution by the introduction of any new subject matter.
It was stated too that the judge erred in law when he failed to recognise that Article 164 of the constitution conferred on the Parliament of Guyana constituent power, and also failed to recognise that the constituent power conferred on the Parliament of Guyana bestowed upon it the power to make fundamental changes to the constitution and consequently the alterations to Article 90 ought not to have been held to be repugnant to Articles 1 and 9.
It was stated too that Justice Chang erred in law when he failed to recognise that Act No. 17 of 2001 was enacted pursuant to the constituent power of Parliament, a power conferred upon Parliament and delegated to the said Parliament by the people of Guyana by Referendum.
The appeal added that the judge erred when he held that Article 9 was breached by Parliament enacting Act No. 17 of 2001 and when he held that Article 9 was breached and in effect enforced the provisions of Article 9, notwithstanding it was provided by Act No. 1 of 1988 to be unenforceable.
Additionally, it stated that Justice Chang erred when he held that the alteration of the constitution by Act No. 17 of 2001, resulted in the creation of “a new thing and was not a change, modification and or variation of the Original Article 90” of the constitution.
According to the appeal, Justice Chang erred when he held that Article 9 was breached notwithstanding that the legal effect of Act No. 17 of 2001 did not render the State undemocratic or the taking away of the sovereignty of the people of Guyana.
It adds that the judge erred when he “misconstrued” the judicial nature of the provisions of Articles 1 and 9 and failed to recognise that those provisions relate to the democratic form of government and the essential framework of the constitution.
Further it says the judge erred when he held that the provisions of Act No. 17 of 2001 were undemocratic in nature; when he failed to identify any test or standard to determine what would constitute an amendment and or alteration within the alteration powers conferred on Parliament by the constitution and when he in effect held that Act No. 17 of 2001 would have altered the basic features and structure of the constitution.
