Attorney Roysdale Forde has applied to the Court of Appeal for leave to approach the Caribbean Court of Justice (CCJ) to appeal last month’s ruling that the presidential term limit is unconstitutional.
Forde represents former Speaker of the National Assembly Raphael Trotman, one of two respondents named in the original court action brought by Cedrick Richardson, a private citizen. The other respondent is the Attorney General.
Richardson had approached the High Court challenging the two-term restriction created by amendments to Article 90 of the Constitution that were enacted in 2001 after the bipartisan Constitution reform process.
On July 9, 2015, then acting Chief Justice Ian Chang had ruled that the presidential term-limit was unconstitutional without the approval of the people through a referendum. The amendments to the constitution had seen the insertion of two clauses to allow for re-election only once.
Subsequently, attorneys for both respondents filed an appeal. By majority decision on February 22, the appellate court upheld Justice Chang’s ruling.
In an affidavit in support of the notice of application for leave drawn up by Forde, Trotman states that the subject matter of the appeal to the CCJ is in respect of the interpretation of Articles 1, 9,90, 160 (2), 164 (2) (a) and 177 of the Constitution of Guyana.
Trotman states that the matters referred in his application are not intended to be exhaustive of the complaints against the decision of the Court of Appeal of Guyana, but to show that the matters intended to be the subject of the appeal constitute good and arguable grounds for which leave to appeal ought to be granted. He said that the matters are of “general or public importance,” which need to be determined definitively by the CCJ.
According to the notice, the appeal is against the decision of the majority of the Court of Appeal, comprising Justice Carl Singh, Chancellor (ag.), who has since retired, and Justice of Appeal B S Roy, whereby it dismissed an appeal against Justice Chang’s judgment. Then acting Chief Justice Yonette Cummings-Edwards dissented.
The notice states that the majority of judges erred in law in several instances.
It says they erred when the court held that the alteration of Article 90 of the Constitution of Guyana by Act No 17 of 2001 diluted and diminished the democratic sovereignty and the sovereignty of the people under Articles 1 and 9 of the Constitution of Guyana, respectively.
It further contends that the judges erred when the court held that in order to give effect to the altered provisions of Article 90 of the Constitution of Guyana by Act No 17 of 2001, a referendum was required.
The notice says judges erred when the court held that the alteration of Article 90 of the Constitution of Guyana by Act No. 17 of 2001 diminished the democratic rights of the electorate in electing a person of their own choice as president, and also when it failed to recognise that Article 164 of the Constitution conferred on the Parliament of Guyana constituent power. It says this constituent power conferred on the Parliament bestowed upon it the power to make fundamental changes to the Constitution of Guyana and consequently the alterations to Article 90 ought not to have been held to be repugnant to Articles 1 and 9 of the Constitution of Guyana.
According to the notice, the court erred too when it held that Article 9 of the Constitution was breached by the enactment of Act No 17, notwithstanding the fact that the legal effect of Act No 17 did not render the State undemocratic or the taking away of the sovereignty of the people of Guyana.
It also contends that the court misconstrued the juridical nature of the provisions of Articles 1 and 9 of the Constitution and failed to recognise that those provisions relate to the democratic form of government and the essential framework of the Constitution.
Instead, the notice says, the court improperly relied on a broad and purposive interpretation of Articles 1 and 9 of the Constitution of Guyana, without regard to the context, text and meaning of words and or phrases contained therein, and also held that the amendment to Article 90 affected the electorate’s right to elect a person of their own choice as President and did not hold that the right to choose a person as President was a specie of the right of expression which is exercisable by the act of voting.
According to the notice, the relief being sought from the CCJ is for the decision of the Court of Appeal to be set aside or reversed and that leave to appeal Chang’s judgement be granted.
The Court of Appeal heard the case for the first time in January and made its decision based on written submissions submitted by each party.
In the ruling, Justice Singh had argued that the decision of the term limits rests with the people via a referendum and not the National Assembly. Justice Singh had stressed that people should choose whom they “please to govern them” and noted that this is essential to all other rights.
Act No 17 of 2000 “waters down” the opportunity of the people of Guyana to elect the president of their choice though this is present in Articles 1 and 9, he said.
Justice Singh said changes to the features of these articles could only be done “by the people themselves” via referendum. He said that when the Act No 17 “altered” the provisions of Article 90, resulting in an increase in the number and categories of disqualified persons who the political parties might have considered as their candidate, it “effectively suppressed the right of the people to freely choose those persons whom they feel should represent them.” He said that this right of the people to choose is now controlled by the National Assembly.
Justice Roy later concurred and did not make any submissions.
Justice Cummings-Edwards, in her dissenting opinion, expressed the view that Act No 17 “did not require approval by referendum.” She said that the amendment to Article 90 was not unconstitutional as Justice Chang had pointed out. “The amendment was validly done,” she said, while adding that Article 90 did not either directly or indirectly alter, dilute, affect or amend Article 1 and Article 9.
Moreover, she posited that it was Parliament that set the presidential term limit and later explained that it was the electorate who gave the National Assembly the power to amend the Constitution.
By way of a constitutional motion, Richardson challenged the restriction created by amendments to Article 90 that were enacted in 2001 after the bipartisan Constitution reform process.
Richardson claimed that Act No 17, which was passed by a two-third 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.
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.”
After the judgement, Richardson’s lawyer, Shaun Allicock, in an invited comment, expressed satisfaction with the court’s decision. He said the matter was really about the democratic rights of citizens of Guyana.
Asked about his level of confidence in the CCJ also upholding Justice Chang’s decision, Allicock responded, “We are confident… We wouldn’t be here [Court of Appeal] if we didn’t think that it was something that was winnable.”
He told reporters that the people of Guyana are deserving of the courts hearing these matters and deliberating on them.
Allicock questioned what would happen if the Parliament decided that a person must be a former parliamentarian in order to be a presidential candidate. “That would mean those 65 people in Parliament have a 1 in 65 chance of becoming the next president. So tinkering with these criteria has issues,” he stressed.
The attorney said that whatever the final decision was, he will accept it and all would know whether a person can serve in office for two terms or not.