Dear Editor,
I would summarise my understanding of the Chief Justice’s ruling on the term limit case thus: Act 17 of 2001 (amending Article 90 of the 1980 constitution), which imposes term limits by a 2/3 parliamentary vote, is unconstitutional because it reduces the amount of democracy, and that reduction flies in the face of Article 1, which declares Guyana to be “an indivisible, secular and democratic sovereign state.” The key word here is ‘democratic.’ As Article 1 is only amendable by a referendum, the democracy-reducing Act 17 of 2001 cannot stand, unless the people vote in a referendum to diminish the democracy granted in this article.
To quote from the ruling of the Chief Justice (as posted in the Guyana Times): “However, it does appear to the court that, in so far as the creation of a democratic state necessarily entails the existence of an independent judiciary and certain fundamental rights and freedoms and protection under the law, any Act of Parliament which seeks to diminish such essential democratic values cannot be of legal effect without a referendum since Article 1… is entrenched by a referendum” by Article 164(2)(a).
The ruling goes on to show why expressed fears about the fate of other such amendments are misplaced, by stating that constitutional amendments that enhance democracy can be passed by just a parliamentary majority. Quoting the Chief Justice again: “on the other hand, an alteration of any of those provisions which seek to widen or promote the values or rights therein contained would not require a referendum, and a 2/3 majority vote of all the elected members would suffice…” In short, what is good for democracy, a parliamentary vote can work. But what is bad for democracy, the people will have to decide directly in a referendum (not through their elected representatives) if they want this bad thing.
I do not know if an accepted name exists for this doctrine of constitutional interpretation, but for convenience I would call it ‘the doctrine of democratic worth or value.’ From my layman’s perspective, I respectfully submit this doctrine, and the decision based on it, are troubling and harmful for the reasons I sketch below.
Firstly, the ruling completely ignores the legislative history behind Articles 90 (2) and (3), the term-limit articles. These articles emerged out of a constitution reform process in 1999 that followed a tumultuous political crisis in Guyana after the disputed 1997 general election. To achieve political stability and national unity, our political parties agreed under the so-called Herdmanston Accord of 1998 to implement constitution reform. The Constitution Reform Commission (CRC), that was established, included representation from fourteen different political and civil society organizations. Among its work, it held 85 public hearings across the country and received over 4,500 proposals from the public.
By the time matters reached to the parliamentary vote, a consensus among national stakeholders had emerged that Guyana would be better off without the detrimental impacts of personality cult and leader-for-life syndrome in the holder of the presidency, supposedly produced by one person holding the office continuously and for too long. No doubt, the Burnham factor was uppermost in the minds of most at the time. The people and their representatives therefore felt it would be good for democracy in Guyana to introduce term limits for the presidency. If one then applies the CJ’s “doctrine of democratic worth”, term-limits (analyzing them as theoretical concepts) should be constitutional as they promote democratic values in the context of Guyana and, in addition, the people through the consultative and parliamentary mechanisms established under the CRC said they believed so.
The second problem that exists in the ruling is the over-reliance on one standard (democratic worth) against which all the amendments are to be judged for their constitutionality. Sure, Article 1 emphasizes democracy. But the Preamble (which guides the interpretation of the entire constitution) also speaks of other national values and aspirations, such as “reconciliation and cooperation”, “harmony and peace”, “unity”, and “safe society.” Democracy (however defined) is important, but one of several national goals.
The perpetual challenge in these situations where several goals (or freedoms, or values or rights) coexist is that goals may conflict. Freedom of expression conflicts with requirements to protect the reputation and rights of others. How would the Chief Justice rule therefore if an amendment limits democratic value but increases public safety or racial unity? Or have the citizens agreed that democracy trumps everything?
Thirdly, the ruling has opened up the time-honoured questions about democracy: what is it, how does one weigh it, and who weighs it? Is there a scale, objective and unanimously accepted? The ruling has now taken the court into the realm of political science and philosophy. The Chief Justice has taken on the unenviable responsibility to settle potential questions on democracy that experts in the field squabble about in science journals and at conferences. Is this a case of judicial overreach?
So while we may agree with the Chief Justice that an independent judiciary is good for democracy, what about term limits for High Court judges, an issue that has resurfaced in the US where some are calling the lifelong tenure of Supreme Court Justices harmful to democracy? Are state-owned media good or bad for democracy? Is a voting age of 18 better for democracy than 21? And so on. What the Chief Justice’s ruling now instructs is that any recent or future constitutional amendment (or any subsidiary legislation that strongly impinges on the constitution, I imagine) would have to pass a democratic taste test to determine its level of entrenchment, which will then inform if the provision is amendable by referendum or a parliamentary majority. This approach will stir up too many uncertainties and disputes. It is not good ground on which to rest our constitution and lawmaking.
Lastly, without expanding, the ruling raises other questions: what are the boundaries of our representative democracy, enshrined in Article 9? The ruling seems somewhat dismissive of parliamentary democracy. What is more entrenching in our politically divided environment? Some may argue that a 2/3 multi-party parliamentary majority may offer a higher level of entrenchment or protection that a referendum winnable by a simple majority of the electorate (with the possibility of the tyranny of the majority or electoral dictatorship).
The ruling of the Chief Justice has raised more questions and uncertainties than answers. The Court of Appeal should walk it back.
Yours faithfully,
Sherwood Lowe
