On 26 June 2018, the Caribbean Court of Justice (CCJ) issued a media release under the caption ‘CCJ Rules Two Terms only for Presidents of Guyana’. The release relates to the case of the Attorney General (AG) of Guyana v Cedric Richardson. It stated that ‘an amendment, that barred Presidents of the Republic of Guyana from serving more than two terms in office, was a valid amendment to the Constitution’.
Today’s article discusses the CCJ ruling by giving a background to the case, the legal issues involved and the decision of the court, followed by some concluding remarks. It draws heavily on the case summary made available, compliments of the Stabroek News.
Background to the Case
In 2000, following extensive national consultations, certain sections of the Constitution were amended, including amendments relating to the qualification requirements for a President. In accordance with the amended Article 90 (1), for a person to be elected President: (a) he/she must be a citizen of Guyana and is a Guyanese by birth or parentage; (b) he/she must be residing in Guyana on the date of nomination for election and was continuously residing therein for a period of seven years immediately before that date; and (c) he/she is otherwise qualified to be elected as a member of the National Assembly. By Article 90(2), a person elected as President after 2000 is eligible for re-election only once.
Mr. Richardson (the respondent) had challenged the amendment to Article 90 (2) on the grounds that: (1) it diluted his right to choose whomever he wanted to be President, as implied by Articles 1 and 9 of the Constitution; (2) the amendment had to be supported by a majority vote in a referendum; and (3) no referendum was held prior to the amendment and therefore the amendment was unconstitutional. Article 1 refers to Guyana being a democratic sovereign state while Article 9 states that ‘sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by the Constitution’. (Emphasis mine.)
The matter was first heard in the High Court of Guyana which ruled in favour of the respondent. Upon appeal by the AG of Guyana, the Court of Appeal, by majority decision of two to one, upheld the ruling of the High Court. Both courts held the view that ‘an essential feature of a sovereign democratic state was the freedom enjoyed by its people to choose whom they wish to represent them’, and that the amendment to Article 90(2) ‘diluted the right of the people to elect a President of their choice inherent in Articles 1 and 9’. They relied on the US Supreme Court decisions in Powell v McCormac 395 U.S 486 and US Term Limits Inc v Thornton 514 U.S 779115 S. Ct (1995), and the Privy Council decision of State of Mauritius v Khoyratty (2007) 1 AC 80 in arriving at their ruling.
The dissenting opinion was rendered by then acting Chief Justice Cummings-Edwards. She argued that the Constitution ‘bestowed upon Parliament the power to expand the categories of persons disqualified from running for President in Article 90 and that there was no need for a referendum in order for Parliament to do this’. She further argued that the respondent ‘failed to displace the presumption of constitutionality of the amendments by establishing that when Parliament purported to amend Article 90 it was acting either in bad faith or has misinterpreted the provisions of the Constitution’.
The AG of Guyana, relying heavily on the dissenting opinion, appealed the ruling to the CCJ. He also submitted that the court was not entitled to assess whether the amendment to Article 90 was inconsistent with Articles 1 and 9 since the amendment did not purport to amend those articles.
Legal Issues Involved
The Constitution contains 232 articles. As provided for by Article 164, eleven of these, namely, Articles 1, 2, 8, 9, 18, 51, 66, 89, 99, 111 and 164, can only be altered by way of a referendum. Alterations in respect of some 170 Articles, inclusive of Article 90, are permitted if they are approved by a majority of two-thirds of all elected members of the National Assembly. In such a circumstance, it shall not be necessary for a referendum to be held. The remaining Articles can be amended with the approval of a majority of all elected members of the Assembly.
The CCJ considered that there were two issues to be addressed: (1) Could Articles 1 and 9 be altered by implication? and (2) If so, did the additional disqualifications change or dilute the right of the electorate in the sovereign democratic state of Guyana as prescribed by those Articles?
Decision of the CCJ
The CCJ, by majority decision, six to one, allowed the appeal and held that the constitutional amendment to Article 90 of the Constitution has been validly enacted. Although they agreed that Articles 1 and 9 could be altered by implication, their views varied as to whether there was an implied alteration. The majority judgments were rendered by Sir Dennis Byron (President of the CCJ), Mr. Justice Adrian Saunders and Mr. Justice Wit. The dissenting opinion was given by Justice Winston Anderson.
President Byron considered that there are three ways in which the Constitution can be amended or altered. At the basic level, this is done by an absolute majority vote of the National Assembly. At the intermediate level, alterations to certain provisions, such as Article 90, can be done with the approval of a two-thirds majority vote of all members of the Assembly. At the highest level, alterations can only be made via a referendum. This includes Articles 1 and 9. His view was that “by providing different levels of entrenchment for Articles 1 and 9 on the one hand and Article 90 on the other, the inescapable conclusion was that the framers of the Constitution did not envisage that altering the qualifications to be President would necessarily impact on democracy or the sovereignty of the people of Guyana.”
President Byron further stated that: the concept of qualifications for office was not open ended and would include matters of age, citizenship, residence and term limits; and that the amendments were not the result of a desire of any political party to manipulate the candidacy for the Presidency, given the historical background of the amendments. Rather, they represented the considered opinion of the 1999 Constitutional Reform Commission after extensive national consultations of what was required to enhance democracy in Guyana. The amendments to Article 90 were part of a whole suite of constitutional amendments.
Justice Saunders argued that ‘Democratic governance allows for, indeed requires, reasonable restrictions to be placed on the qualifications to be a member of the National Assembly and hence also to be President. He stated that even before the amendments, there were qualification requirements such as being qualified to be elected as a member of the National Assembly pursuant to Article 155 which stipulated a range of restrictions as to who may be so qualified. Justice Saunders further stated that: the restrictions introduced by the amendment to Article 90 were found in many States that are liberal democracies; and the respondent did not provide any evidence that Articles 1 and 9 were diluted by the amendments.
Justice Wit’s judgment was based on consideration of international standards of what a democratic state entails. He stated that: in those standards, residence requirements are allowed provided they are reasonable; and limits on re-election ‘pursued the aim of preserving democracy and protected the human right to political participation’. Justice Wit concluded that the introduction of term limits did not dilute or water down the democratic status of Guyana.
In his dissenting judgment, Justice Anderson argued that the imposition of restrictions that disqualify large numbers of persons from standing for election as President, which restrictions were not sanctioned by the people, adversely affect their freedom to choose who they wish to be President. He was therefore of the opinion that the amendment was unconstitutional because it disqualified five categories of persons from standing for the post of President who were not previously disqualified, without the approval of the people in a referendum. Unlike Justice Wit, Justice Anderson felt that the amendment diminished or watered down the rights vested in the people by Articles 1 and 9.
The CCJ ruling on presidential term limits is a most enlightening one. Few will disagree with it, including, in their own moment of quiet reflection, those who might have been affected by them as well as those who have advocated against them. Such limits do not in any way appear to diminish the fundamental principles enshrined in Articles 1 and 9 of the Constitution that: Guyana is a sovereign democratic state; sovereignty is ‘sovereignty belongs to the people; and sovereignty is exercised through their representatives and the democratic organs. The fact that Article 90 was amended with the approval of two-thirds of the members of the National Assembly without a referendum, is in conformity with both Articles 9 and 164 and is therefore not unconstitutional.
Few will also disagree that restricting presidential term limits enhances rather than erodes democratic governance. However, such a restriction is not a guarantee since the system can be allowed to be manipulated by behind-the-scene manoeuvres. Term limits do provide a glorious opportunity: to serve the public interest to the best of one’s ability; to display the type of leadership that reflects humility and compassion for fellow citizens; to manage the affairs of the State with the complete honesty, integrity and fairness, as well as with the greatest degree of transparency, accountability, competence and professionalism; and to be guarded against the abuse and misuse of power and authority. At the end of a President’s tenure, he/she rides off towards sunset in the full knowledge and belief that he/she has served the nation and its peoples well. This is what makes America, despite all its faults, so great a nation in terms of democratic governance.