Several news publications have reported President David Granger as saying that notwithstanding the decision of the court regarding the interpretation of Article 161 (2) of the Constitution, he intends to act in accordance with his own perception of the meaning of the text.
Ideally, I would have preferred to have the benefit of the court’s written decision, and an official statement from the President on the judgement to inform this contribution. However, as neither seem available at the moment, I will proceed on the strength of what has been reported.
Now, providing that such a position was indeed taken by the President, it constitutes an affront to the principle of constitutionalism, which advances the view that a government’s powers are subject to the constitution. Essential to the principle of constitutionalism is the doctrine of judicial supremacy, that is, the exclusive right of superior courts of record to authoritatively interpret and apply the constitution and statutes. It is for this reason that courts are often described as the guardians, or protectors of the constitution.
This principle was elucidated by the United States Supreme Court as early as 1803 in the landmark case Marbury v Madison (1803) 1 Cranch 137. Delivering the opinion of the Supreme Court, Chief Justice John Marshall remarked, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”
The role of courts in interpreting constitutions was also stated in the case of Shatrughan Chauhan and Another v Union of India and Others; and other writ petitions (2014) 4 LRC 124, where the Indian Supreme Court said: “There is no question of remanding the matter for consideration because this court is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution.”
Both decisions reflect the generally held position of courts across several jurisdictions, and thus constitute persuasive authority. I am yet to encounter any determinations which suggest that the interpretation of a constitutional provision by an executive president in a democracy is superior to a judicial interpretation.
There is no written constitution to interpret in the United Kingdom, but it is trite law that it is the court which possesses exclusive authority to interpret and apply statute. Various rules and canons of interpretation have been developed over the centuries to assist the court in this exercise. How familiar is the President with these rules and canons? Indeed, the President has the benefit of the advice of the Attorney General, but even this officer’s interpretation is not superior to that of the court.
So then, if our superior courts authoritatively interpret the constitution, saying what it means, and Article 8 of the Constitution provides that “This constitution is the supreme law of Guyana…” one may reasonably argue that the meaning of the Constitution, as given by the court, is supreme, being superior to all other proffered meanings, and subject only to the determinations of more senior courts in Guyana’s judicial hierarchical structure.
The effect is that the President’s interpretation of Article 162 (2) of the Constitution is, in law, of no legal effect where it differs from the judicial determination of a superior court of record. Furthermore, unless his own view is vindicated on appeal from the current determination, the President is duty bound to defer to the judicial determination.
There is a very important rationale behind the court’s authoritative role as interpreter of the Constitution. Consider a scenario where every entity or person empowered by the Constitution to exercise power is allowed to conclude for themselves the meaning of constitutional provisions which define the nature and scope of their powers. Imagine if the President is allowed to, ignoring previous and later judicial determinations, determine, in all cases, the limitations, or lack thereof, on his own discretion and even immunities.
Also, consider the ramifications of citizens demanding the civil, political and economic, social and cultural rights provided for in our Constitution in accordance with their own interpretations, as opposed to deferring to judicial guidance. What if citizens interpreted the guiding principles of our Constitution as binding upon the state, as opposed to viewing them as non-justiciable, as decided by our courts? Article 27 (1) in particular, which speaks to the “right to free education from nursery to university as well as non-formal places where opportunities are provided for education and training”, would be especially problematic.
The role of the courts in Guyana is similar to that of the Caribbean Court of Justice (CCJ) with respect to the interpretation and application of the Revised Treaty of Chaguaramas (RTC). If each state party to the RTC is allowed to interpret and apply the RTC’s provisions for themselves, it is likely that we would have as many interpretations as we do states. Indeed, in the few cases which have engaged the CCJ’s original jurisdiction, various states have proffered their own interpretations of RTC provisions, none of which are valid unless they align with the interpretation adopted by the CCJ.
To ensure a much needed, uniform interpretation and application of the RTC within the Caribbean Single Market and Economy, there must be a single, authoritative interpreting entity. The CCJ, in its original jurisdiction, serves this role.
To ensure a uniform interpretation and application of Guyana’s Constitution and statutes, there must be a single, authoritative interpreting entity. Our courts of superior record, including the CCJ in its appellate jurisdiction, serve this role.