Justice Chang’s conclusion that 1980 Constitution was approved in a referendum is difficult to understand

Dear Editor,

Chief Justice Mr Ian Chang in his decision of the case of Cedric Richardson v AG and Raphael Trotman HC – DEM – CIV – CM – 10 of 2015 Demerara (the Presidential term limit case) stated:

“The articles of the 1980 Constitution, having received the favourable vote of the electorate in a referendum, represent the direct voice of the people.”

His Honour did not state any fact(s) or law that led him to the conclusion that the 1980 Constitution received “the favourable vote of the electorate in a referendum.”

My own research shows the following:

A referendum (which Guyanese of my generation persist in calling a referandum) was held in Guyana in 1978.

The Constitution (Amendment) Act of 1978 paved the way for the referendum. Section 2 of the Constitution (Amendment) Bill published in the Official Gazette dated 1st April, 1978, (All Fools’ Day) contained the following provisions:

“2. Article 73 of the Constitution is hereby altered by the deletion of paragraphs (2) and (3) and by the substitution therefor of the following paragraphs (2) and (3) respectively –

“(2) Subject to paragraph (3) of this article, a bill to alter any of the provisions of this Constitution shall not be passed by the National Assembly unless it is supported by votes of a majority of all the elected members of the Assembly.

“(3) A Bill to alter any of the following provisions of this Constitution, that is to say –

This article, articles 1 and 2, Chapter II, Chapter III, articles 30, 33, 40 and 47, Part 2 of Chapter V (other than article 53 (3) and (5) of the First Schedule), articles 57, 58, 59, 60, 65, 66, 68, 69, 71, 81 and 82, Chapter VII (other than article 91), Chapter VIII, Chapter IX, articles 115, 116, 118 and 119, and article 125 in its application to any of the provisions mentioned in this paragraph,

“Shall not be passed by the National Assembly unless it is supported at the final voting in the Assembly by the votes of not less than two thirds of all the elected members of the Assembly.”

The Explanatory Memorandum above the signature of Prime Minister LFS Burnham stated:

“The existing Constitution is too rigidly rooted in the structures of the colonial past to serve as an efficient vehicle for transforming the society into the kind of society it needs to become if it is to survive in the modern world. It is necessary to adopt a new constitution more reflective of the national ethos. This Bill seeks to facilitate the introduction of such a constitution.

“Under article 73 of the Constitution the procedures for amending certain provisions of the Constitution include the holding of a referendum. This Bill seeks to amend that article so as to remove the requirement for holding a referendum and to enable provisions of that kind to be amended by a Bill which has been supported by the votes of not less than two-thirds of all the elected members of the National Assembly. After the Constitution has been so amended, it will be competent for Parliament to repeal the existing Constitution and to replace it by another without the necessity for a referendum.” [Italics added]

The Referendum (Amendment of the Constitution) Act 1978 was published in the Official Gazette dated 23rd May, 1978.

The long title reads:

‘An Act to provide for the submission of the Constitution (Amendment) Bill 1978 to the vote of the electors qualified to vote in an election of members of the National Assembly, in accordance with Article 73 of the Constitution.’

Section 4 (1) with the marginal note “Question to be put to the electors,” reads:

“4. (1) The electors shall be asked to answer either ‘Yes’ or ‘No’ to the following question –

‘Do you approve of the Constitution (Amendment) Bill 1978 which was passed by the National Assembly on 10th April, 1978 and published in the Official Gazette dated 13th May, 1978?’”

The purpose of the referendum of 1978 was to ask the Guyanese people to abolish referenda for the measures contained in the Articles stated.

I am not aware of any other referendum of the people held to approve any amendment or otherwise of the Constitution.

I am therefore at a loss to understand the basis for his Honour’s conclusion that the 1980 Constitution received the favourable vote of the electorate in a referendum. When was this referendum held?

I do not in this letter express any opinion on the soundness or otherwise of the final decision in the term limit case. I limit my comments at this stage to questioning the basis for the conclusion of His Honour that the 1980 Constitution was approved by the people by a supposed referendum.

Whether the decision turns out to be right or wrong, the case did raise an important legal issue – whether a constitutional amendment can violate the Constitution.

I wish to add the following case to those cited by the learned Judge for the benefit of those interested in the subject. This point was raised by the learned Author David M O’Brien in his work Constitutional Law and Politics, Vol. 2, 4th Edition 1999, WW Norton & Co, New York.

The author cited the following case:

The German Constitutional Court, for instance, struck down a provision of its Constitution in the Southwest Case, 1 BverfGE 14 (1951). After World War II, the occupation forces divided two states, Baden and Württemberg, into three for the purposes of administration. When the new Constitution of the Federal Republic of Germany came into effect in 1949, these three territories became Länder (states) with their own Constitutions. Articles 118 of Germany’s Basic Law, however, provided that these three territories could be reorganized according to their own agreement or, if they failed to reach an agreement, by federal legislation and a referendum of the people.

They were unable to reach an agreement and in 1951 the Parliament passed two reorganization laws, creating a single Land to be called Baden-Württemberg. Baden immediately challenged the constitutionality of these laws on the ground that they diminished Baden’s status as a Land and treated it unfairly and unequally by calling for a referendum of the people, instead of just its own population. In holding unconstitutional Article 118, the German Court observed:

“An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is linked to that of the other provisions.

Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. Article 79, paragraph 3, makes it clear that the Basic Law agrees with the statement of the Bavarian Constitutional Court:

“That a Constitutional provision itself may be null and void, is not conceptually impossible just because it is part of the Constitution. There are constitutional principles that are so fundamental and to such an extent an expression of a Law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles…

“From this rule of interpretation, it follows that any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decision of the framer of the constitution. This rule applies also to Article 118, sentence 2.”

Yours faithfully,
Winston Moore