The CJ’s decision on term limits

Dear Editor,

I have had the benefit of letters in your letter column by Professor Justice Duke Pollard (SN, July 11) and Sherwood Lowe (SN, July 12) concerning the Chief Justice (ag) decision that the term limit on presidential re-election (purportedly) introduced into the constitution in 2001, is unconstitutional. I have also had the benefit of the more reticent comments of Ralph Ramkarran, (Sunday Stabroek, July 12) under caption ‘Jagdeo cleared for third term.’ I am excited to join the debate in its legal aspects.

Having had the benefit of reading the decision, I wonder whether the consternation of Professor Justice Duke Pollard might not be a case of extra-judicial overreach, even as I remind myself that “Justice is not a cloistered virtue…” I disagree with the ruling reluctantly. Yet, I could not be indifferent to the obstacles that may have contrived to make the Chief Justice (ag) role of interpretation a matter of some considerable difficulty ‒ the novelty of the issues; inadequate and defective pleadings.

En passant I would observe that the Constitution Reform Commission process was not (in spite of its national, consultative or participatory character) a referendum (either in fact or at law) under Article 164(2)(a). Sherwood Lowe might think it nonsensical that the CRC’s recommendations have no relevance in the judicial function, but in the off-stated aphorism: judges are not concerned with the desirability, only with the validity of the law.

Turning now to the ruling and the criticisms of it: In my view the Chief Justice (ag) was correct not to take an a priori position that the matter fell within the “proviso of article 164(2)” (in which circumstance no need for referendum would arise) because, the very pleading of the plaintiff called for a judicial examination on the merits. The question is not whether parliament intended or purported an alteration of Article 1; the question is whether in fact and in law an alteration happened.

Besides, it is a fallacy to presume that “law” (even in Article 8) means what is only expressly prescribed in the constitution, for when Article 8 provides “This constitution is the supreme law …” that “law” includes a reference also to “any unwritten rule of law” (see Article 232). Constitutional lawyers know that unwritten law includes norms, conventions, traditions, etc.

Because of the heavy reliance which the Chief Justice (ag) has placed on Article 1, I quote it in full: “Guyana is an indivisible, secular, democratic sovereign state in the course of transition from capitalism to socialism and shall be known as the Co-operative Republic of Guyana.” For myself I would not fault the Chief Justice (ag) for his understanding of the concept “democratic” which he adopted. I cannot agree that “democratic” in Article 1 “is at worst undecipherable and at best a juridical oxymoron which defies rational analysis.”

It is true that the constitution is an admixture of expressed prescriptions, necessary implications and unwritten rules of law; and it is the duty and right of any judge in constitutional adjudication to identify those unwritten rules of law when encapsulated in conceptions such as “democratic sovereign”. Arguably, and Cedric Richardson was entitled to take this position, Article 90 is about presidents; he qua elector (not elected) has (and must be seen to have) rights which emanate from Article 1 and are sui generis. Being sui generis their constitutional efficacy

cannot be contingent upon a president’s indefinite right of candidature or limited by a term limit (as the case may be). Abridgment or abrogation of such elector’s rights under Article 1 requires by Article 164(2)(a), a referendum. It is immaterial whether those rights arise from unwritten rules of law or otherwise. To that extent the elector is not concerned with Article 90.

Ex post facto parliament has been judicially faulted. But should parliament have first sought an advisory opinion from the High Court or Court of Appeal (as the case may be) as to whether or not a referendum was necessary before assent? Perhaps this is a question appropriate for constitutional reform consideration. The Chief Justice (ag) has to interpret the constitution as he finds it. Our constitution has not created any advisory opinion jurisdiction. But the Chief Justice (ag) could not seek to invoke and rely on Article 1 without first, as a preliminary matter, satisfying himself as to the justiciability of the “democratic sovereign state….” limb of Article 1, having invoked it. There is no irrebuttable presumption of law that it is. Cedric Richardson’s action was bound to fail if Article 1 was, upon examination, found to be non-justiciable; for Article 1 was the linchpin of his case.

In his majority judgment in Mohamed Alli et al (1987) 41WIR176 Massiah, C adopted this approach, and in expounding on the (non)justiciability test advised that a provision would be non-justiciable if it is “…. So widely and generally formulated as to be incapable of enforcement…” That case was concerned with the (non)justiciability of Article 11. Different judges might have different views as to the width and generality of the word “democratic” in Article 1. A constitutional provision such as Article 1 (and Article 9 too) can have socio-political and socio-economic use at the executive level, and utility as an influence on legislative policy, without being enforceable in a court of law because of the vagueness and uncertainties that inhere in the generality of its wording.

For myself, applying the test propounded by Massiah, C, I would respectfully contend that that limb was not justiciable. Adjudicatively, the court could not then rely upon it to find the requirement of a referendum. Therefore a referendum did not come into the process. The bill as passed was assentable. It was assented. It was constitutional on the foregoing hypothesis.

Constitutional interpretation on a question of the type raised by Cedric Richardson v Attorney General and Raphael Trotman inevitably raises, inter alia, nice questions of locus standi and jurisdiction. Article 177(4) raises an interesting question as to jurisdiction given the marginal note to Article 90, viz, “Qualification for Election”. Should not the Chief Justice (ag) have declined jurisdiction to entertain the action in Cedric Richardson?

Yours faithfully,
Maxwell E Edwards