Hearing of appeal of third-term ruling begins Friday

The hearing of the appeal of the ruling made by now retired Chief Justice Ian Chang that the presidential term-limit is unconstitutional begins on Friday and it is anticipated that the matter will be watched closely as it appears that former president Bharrat Jagdeo is positioning himself to seek a third term.

The start of the case comes 17 months after Attorney-General Basil Williams SC and former Speaker of the National Assembly Raphael Trotman appealed the ruling.

On July 9, 2015, then acting Chief Justice Chang ruled that the presidential term-limit was unconstitutional without the approval of the people through a referendum.

In addition to allowing Jagdeo to seek re-election, the ruling also appeared to enable persons who have become Guyanese citizens by virtue of registration to run for president, as well as to invalidate a requirement that candidates be resident in Guyana on nomination day and for at least seven years prior.

These qualifications had also been effected by the amendments to Article 9 of the Constitution that had seen the insertion of two clauses to allow for re-election only once.

Article 90 of the Constitution now carries clause (2), which states, “A person elected as President after the year 2000 is eligible for re-election only once,” and clause (3), which states, “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.”

Jagdeo, who was elected as president in 2001 and 2006, surprisingly returned to the National Assembly after 2015 polls as the Opposition Leader. His election yesterday as General Secretary of the opposition People’s Progressive Party (PPP) is seen as opening the way for him to run again for the presidency. The next national elections are due in 2020.

The court action had been brought by Cedrick Richardson, a private citizen, months before the 2015 elections. He challenged the restriction created by amendments to Article 90 of the Constitution that were enacted in 2001 after the bipartisan Constitution reform process. Jagdeo has repeatedly distanced himself from Richardson and the case.

Stabroek News was told that the date for the hearing was set sometime last month after acting Chancellor Carl Singh would have assessed the matter. Given the sensitive nature of the case, it was expected that the court would have exercised some haste and set an early date. However, sources had said that this would never be possible as the Court of Appeal is saddled with a backlog of cases and many take years before they are heard.

Grounds for appeal

Solicitor-General Sita Ramlal, on behalf of the AG, and attorney Roysdale Forde, who is representing Trotman, both filed their appeals on August 7, 2015, contending that Justice Chang erred in law.

While noting that the AG was dissatisfied “with the whole of the decision,” Ramlal had cited five grounds for appeal and asked that the ruling be wholly set aside.

In the notice of appeal, Ramlal contended that the Chief Justice erred and misdirected himself in law when he ruled that the National Assembly, which passed Act No 17 of 2001 purporting to alter Article 90 of the Constitution by way of a two-thirds majority vote of all members, was unconstitutional and of no effect as it failed to comply with Article 164(2) (a).

Another ground for the appeal is the contention that Justice Chang erred and misdirected himself when he ruled that the purported alteration of Article 90 by Act No. 17 of 2001 in substance and effect “diminishes the democratic rights of the electorate in electing a person of their own choice as president by excluding from presidential candidates citizens who have served for two terms as a president.” Justice Chang had held that the purported alteration curtails the people’s electoral democratic choices and offends the declaration in Article 1 that Guyana is a democratic state in which sovereignty resides in the people (Article 9) and the alteration of Article 1 and Article 9 could not have been done by two-thirds majority of the elected members of the National Assembly but by referendum.

Ramlal also contends that Justice Chang erred and misguided himself when he posited that the Proviso to Article 164 (2)(b) of the Constitution affected the purported amendment to Article 90 insofar as it seeks to “trench on and dilute” the pre-existing democratic right of the electorate to elect as president a person of their own choice and is invalid and without legal effect for reason of non-compliance with Article 162 (2) (a) and or repugnancy with Article 1 and Article 9, both of which require a referendum for the amendment for any alteration.

The fourth ground, according to Ramlal, is that the Chief Justice erred and misguided himself when he held that while the Constitution provides for representative democracy, such representative democracy cannot trench on popular sovereignty from which it derives and which is entrenched by the requirement of a referendum.

The final ground of Ramlal’s appeal is that Justice Chang erred in law in not satisfying himself that the court had jurisdiction to grant the reliefs sought by the plaintiff.

Trotman’s appeal lists 16 grounds, including those cited in Ramlal’s filing.

While also expressing dissatisfaction with the “whole decision,” the filing by Forde on behalf of Trotman states that the judge erred in law when he held that there can be no substantive addition to the provisions of the Constitution by the introduction of any new subject matter.

It was stated too that the judge erred in law when he failed to recognise that Article 164 of the Constitution conferred on the Parliament of Guyana constituent power, and also failed to recognise that the constituent power conferred on the Parliament of Guyana bestowed upon it the power to make fundamental changes to the Constitution and consequently the alterations to Article 90 ought not to have been held to be repugnant to Articles 1 and 9.

It was stated too that Justice Chang erred in law when he failed to recognise that Act No 17 of 2001 was enacted pursuant to the constituent power of Parliament, a power conferred upon Parliament and delegated to the said Parliament by the people of Guyana by Referendum.

The appeal added that the judge erred when he held that Article 9 was breached by Parliament enacting Act No 17 of 2001 and when he held that Article 9 was breached and in effect enforced the provisions of Article 9, notwithstanding it was provided by Act No. 1 of 1988 to be unenforceable.

Additionally, it stated that Justice Chang erred when he held that the alteration of the Constitution by Act No 17 of 2001 resulted in the creation of “a new thing and was not a change, modification and or variation of the Original Article 90” of the Constitution.

According to the appeal, Justice Chang erred when he held that Article 9 was breached notwithstanding that the legal effect of Act No 17 of 2001 did not render the State undemocratic or the taking away of the sovereignty of the people of Guyana.

It adds that the judge erred when he “misconstrued” the judicial nature of the provisions of Articles 1 and 9 and failed to recognise that those provisions relate to the democratic form of government and the essential framework of the Constitution.

Further, it argues that erred when he held that the provisions of Act No 17 of 2001 were undemocratic in nature; when he failed to identify any test or standard to determine what would constitute an amendment and or alteration within the alteration powers conferred on Parliament by the Constitution and when he in effect held that Act No 17 of 2001 would have altered the basic features and structure of the Constitution.

Jagdeo, in February, 2015, told this newspaper that he was not interested in a third term. Jagdeo at the time was in Russia and he indicated that he had asked the then Cabinet Secretary Dr Roger Luncheon to make his views on the subject public.

Noting that the filing in the High Court seemed to be a calculated attempt to create uncertainty given that the country was close to holding regional and general elections, Luncheon had said, “Former president Jagdeo, who is named in that motion by the applicant, has disclosed his disinterest in the matter and his firm resolution not to entertain further constitutional post holding. The former president insists in his position of principle consistent with his earlier declarations to the public to all and sundry concerning this matter.”

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