The Constitution is not a statute but emanates from the will of the people, in which sovereignty inalienably resides

Dear Editor,

Justice Duke Pollard is a retired member of the Caribbean Court of Justice and in the case of “Cedric Richardson v. the Attorney General of Guyana and the Speaker of the National Assembly”, he has now pronounced judgement in the press after the government challenged that latter decision in the CCJ: “Act No 17, 2001 is in full compliance with Article 164 of the Constitution”. (SN 3-18-17)

Justice Pollard is very consistent with his conclusion, but sadly he just as consistently insists on conflating procedural and substantive matters in constitutional interpretation. Puta-tively addressing Chancellor Carl Singh’s statement, “Caribbean Par-liaments are not at liberty to legislate whatever or however they see fit without having regard to the limits enshrined in the constitution which ultimately have to be construed and guarded by the judiciary,” Justice Pollard rather snarkily posits: “In effect, given the role of the judiciary as guardian of the Constitution, this intractable issue appears to resolve itself into the aspirational concept of judicial supremacy notwithstanding the express provisions in the Constitution designating this instrument as the supreme law.”

Justice Pollard cannot be oblivious of the context within which Chancellor Singh offered his caution: the case was not dealing with matters of policy but interpreting several Acts of the Constitution. As such to allude to “judicial supremacy” is to attempt to muddy the judicial waters when the Chancellor was properly exercising the power of “Judicial Review”, which accepts the Constitution as the “supreme law”, but that it is the remit of the court to pronounce on its proper application.

The other – and more fundamental flaw – in Justice Pollard’s argument is his confusion between the source of the authority on which the constitution rests as the “supreme law” and the legality of its application. Justice Pollard summarises his confusion when he rather astonishingly insists that “the Constitution is a statute” – albeit of “peculiar significance”. Chief Justice Chang and Chancellor Singh were pronouncing on the rights that emanate from the former which is prior to the latter, while Justice Pollard remained stuck at painfully explicating the latter, which is irrelevant to the gravamen of the case at hand. In his own words, all his effusions are “dicta”.

The Constitution is not a statute but emanates from the will of the people, in which sovereignty inalienably resides. Its legitimacy rests on this fact as attested by Article 4 of the Constitutional Reform Act of 1999 which established a Constitutional Reform Commission consisting of “(a)  five members nominated by the People’s Progressive Party/Civic; (b) three members nominated by the People’s National Congress; (c) one member nominated by the United Force; (d) one member nominated by the Alliance for Guyana; (e) a farmers’ representative; a private sector’s representative; (g) an indigenous people’s representative; (h) a women’s organisations’ representative; (i) a youth organisations’ representative; (j) a Guyana Bar Associa-tion’s representative; (k) a Hindu religious organisations’ representative; (l) a Muslim religious organisations’ representative; (m) a Christian religious organisations’ representative; (n) a Labour Movement’s representative.”

This body of “the people’ in quite unambiguous language in Article 9 declared “Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this constitution.”

Justice Pollard declares that in our Constitution, “`democratic must be construed in the same manner like the surrounding terms `indivisible’, `secular’ and `sovereign’, all of which speak undeniably to a unified political entity”. We agree because the Constitution asserts “Guyana is an indivisible, secular, democratic sovereign state.” (Art 1). Justice Pollard confuses this description of the state, with the sovereignty of the people (Art 9) who cannot delegate the power to alter the nature of the constitution to its representatives.

As to whether restricting “the right of electors to elect a President” does in fact alter the nature of the Constitution is a totally different – and subsequent – question.

 

Yours faithfully,

Ravi Dev

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