Dear Editor,
While legal and lay minds continue to dissect and digest the import of acting Chief Justice Ian Chang’s ruling, I decided to do my own research to frame questions to help me draw my own conclusions.
Notwithstanding Justice Chang’s reasons offered in his 37-page ruling, Wikipedia, the layman’s easiest guide to understanding what the ruling may mean for Guyana and Guyanese, says “most constitutions require that amendments cannot be enacted unless they have passed a special procedure more stringent than that required of ordinary legislation. Examples of such special procedures include supermajorities (two-thirds) in the legislature, or direct approval by the electorate in a referendum or even a combination of the two or more different special procedures.”
The billion dollar question that arises from Justice Chang’s ruling, therefore, is whether the 2001 presidential term limit really violated the spirit and letter of the 1980 constitution by allowing a simple two-thirds parliamentary vote, instead of a nationwide referendum, to bring the term limit into law.
According to Wikipedia, which always holds itself out as being subjected to correction based on referenced applicable laws or incontrovertible facts and the truth, “a constitutional referendum was held in Guyana on July 10, 1978, and that the proposed change of Article 73 of the (1966 Independence) constitution would abolish the need for referendums to change the entrenched provisions of the constitution (including presidential powers, the dissolution of Parliament and the electoral system), and instead of allow them to be changed by a two-thirds majority in Parliament (which the ruling People’s National Congress had at the time).” Even Dr Odeen Ishmael agrees with that view.
My layman’s interpretation of the foregoing is that, we can say whatever we want about the late Forbes Burnham, but being a brilliant lawyer and a skilful politician, who had designs on being president-for-life, he got help to brilliantly and skilfully craft a bill to change Article 73 of the 1966 Independence Constitution to replace the required use of national referendums with the required use of parliamentary majorities if there was ever need for the eventual 1980 constitution to be subsequently amended.
The bill to change Article 73 of the 1966 Independence Constitution, therefore, was passed by a two-thirds parliamentary vote in Parliament on April 10, 1978 and the national referendum was held July 10, 1978, when voters were handed a ballot to choose “Yes “or “No” to the question: “Do you approve of the Constitutional (Amendment) Bill No. 8 of 1978 and published in the Official Gazette of May 13th, 1978?” Ballots were assigned the symbols of a house for the “Yes” vote and a mouse for the “No” vote.
On 17 July, 1978 or one week after that ‘successful’ referendum to probably end all referendums, the PNC government successfully tested its newfound power and amended the constitution by its two-thirds parliamentary majority to extend the life of Parliament and negated the 1978 scheduled general election. Parliament would eventually replace the use of referendums to make constitutional amendments.
Yes, the entire exercise was objected to by then Opposition Leader, Dr Cheddi Jagan, opposition parties, trade unions and other civil society stakeholders at the time, and yes, many concluded that while the PNC regime claimed a 70% turnout of voters and a 97% approval of the referendum, the turnout was more between 10% and 15%.
Here is the kicker: Unless that April 10, 1978 bill that changed Article 73 was subsequently voided by a two-thirds parliamentary majority, which I am unaware of at this point, then, going by the 1980 constitution, which Justice Chang relied on to help make his ruling, it is safe to conclude that Parliament was in legal order when it used its two-thirds parliamentary majority to pass the presidential term limit as part of constitutional reforms, and all bills that were passed into law by a parliamentary majority – whether by simple majority or two-thirds majority – remain in effect. Justice Chang deserves to be publicly upbraided for this unnecessary lapse.
Editor, as an aside, I was also made to understand that Dr Bertrand Ramcharan, in his book, The Guyana Court of Appeal: The Challenges of the Rule of Law in a Developing Country, stated that “the Constitution of Guyana (1980) is a nullity… and the Independence Constitution… remains valid and should be reinstituted.”
Many, including current Ombudsman, Justice Winston Moore, Jeremy Gravesande, and Vishnu Bisram, have written letters debating the 1966 Independence Constitution versus the 1980 constitution, and this ruling by Justice Chang may well revive calls for a return to the 1966 Independence Constitution until a better document, genuinely accepted by the people, is produced.
But while that may be a related subject matter for discussion over the ensuing weeks and months, the argument that Burnham and the PNC may have used ‘trickery’ to first change Article 73 of the 1966 Independence Constitution does not automatically negate the fact that the changed Article 73 remains the fundamental premise on which the 1980 constitution rests. And by taking away the need for future referendums to deal with constitutional amendments and giving it to Parliament, there was no legal basis for a national referendum to pass the presidential term limits.
In fact, the PPP, despite objecting to tinkering with Article 73 of the 1966 Independence Constitution to pave the way the 1980 constitution, which it dubbed dictatorial, never bothered to revisit that Article 73 issue and even went on to use the much-denigrated 1980 constitution, which addresses the manner in which all presidents are elected, all judges are appointed, all constitutional agencies are established and all legislative pieces are passed after 1980. All of these may now well be voided if Justice Chang’s ruling is ever to be interpreted to its fullest possible extent, for the 1980 constitution has been the legal point of reference for court’s decisions over the years.
When will the Granger-Nagamootoo administration take steps to advertise for applicants for the job of Chancellor and Chief Justice?
Yours faithfully,
Emile Mervin
