The Guyana Court of Appeal this afternoon upheld the decision of former Chief Justice Ian Chang that the presidential term limit was not lawful as constitutional changes were not achieved via referendum.
Chancellor of the Judiciary, Carl Singh and Justice of Appeal BS Roy upheld Justice Chang’s decision while acting Chief Justice Yonette Cummings-Edwards dissented.
The decision likely means that the case will go to the Caribbean Court of Justice.
Justice Chang’s ruling was based on a constitutional motion brought by private citizen Cedrick Richardson, who challenged the restriction created by amendments to Article 90 that were enacted in 2001 after the bipartisan Constitution reform process.
Attorney-General Basil Williams and the then Speaker of the National Assembly Raphael Trotman were named the defendants in that case. Following Justice Chang’s ruling, both defendants filed appeals.
Following amendments, Article 90 of the Constitution states at Clause 2(a) that a person elected as president after the year 2000 “is eligible for re-election only once” and at Clause (3) that a person who acceded to the presidency after the year 2000 and served therein on a single occasion for not less than such period as may be determined by the National Assembly “is eligible for election as president only once.”
Richardson claimed that Act No 17 of 2001, which was passed by a two-thirds majority of all elected members of the National Assembly to enable the term-limits, “unconstitutionally curtails and restricts” his sovereign and democratic rights and freedom as a qualified elector “to elect the person of former president Bharrat Jagdeo” as executive president.
Jagdeo, a two-term president, is current opposition leader.
According to Justice Chang’s ruling, by virtue of the fact that the alterations diluted and further restricted democratic sovereignty, the holding of a referendum was required. He agreed that the changes “curtail people’s democratic choices” and offend declarations in Articles 1 and 9 that Guyana is a “democratic state” in which “sovereignty resides in the people.”
In his submission, prepared by attorney Esther Sam, Williams contended that it is the political parties and not the electorate who choose the presidential candidate and, therefore, the Richardson has no democratic right to choose who the presidential candidate will be.
Williams further contended that the alteration to Article 90 of the Constitution has not altered Articles 1 and 9 of the Constitution as alleged and therefore did not require a referendum vote.
Williams also pointed out that at all times Richardson based his application on Act No 17 of 2001 but there is no such act in place and he argued that this is a “fatal flaw in the Originating Summons and should have resulted in its dismissal at first instance.”
He also argues that it is clear that Article 164(2) (b) permits alterations to Article 90 once it is done in line with the prescribed procedure. This procedure, it was pointed out, requires that it be passed in the National Assembly with a two-third majority and referred to the electorate for a referendum vote. “However, the proviso further provides that the use of the referendum vote is not required if the alteration does not affect Articles referred to in Article 164(2) (a),” he says.
Williams contended that the electorate has no democratic right to choose who will become the presidential candidate; instead, their right is to vote for the party list of their choice.
He further adds that the amendments did not alter or change any of the provisions in Article (164) (2) (a) as alleged or at all and therefore “there is no requirement for the bill to be taken to referendum. Act No 17 of 2000 is therefore not ultra vires the Constitution since the alteration was done in compliance with Article 164(2) (b) of the Constitution.”
Addressing whether Richardson had any standing to bring the application, Williams said that while it was based on the ground that his right to choose the presidential candidate of his choice was being affected by the constitutional alteration to Article 90, the law states clearly that an electorate does not have the right to choose or vote for a presidential candidate.
Williams also considered whether an originating summons was the appropriate process for instituting the proceedings before the court. He argued that Richardson had not established the legal requirements to bring the application by way of Originating Summons and in fact “ought to have approached the High Court for Constitutional relief by way of Writ of Summons since it is not an allegation of a breach of a fundamental right.”
