Mendez has shifted the CCJ gaze from Article 1 to Article 9 of the Constitution

Dear Editor,

After listening to the entire video stream of the presidential term-limit case (The Attorney General of Guyana, Raphael Trotman v Cedric Richardson), argued before the CCJ last week, I can only conclude that the CCJ will find it extremely difficult to reject the arguments put forward on behalf of Richardson. Recall that Richardson is claiming that Act 17 of 2000 (which amended Article 90 of our Constitution) unconstitutionally restricts his rights as a citizen to elect Bharrat Jagdeo (or, in principle, whomever he wishes) for president because it imposes a two-terms limit.

In this forum, I had expressed disagreement with the ruling of former CJ Chang, who found in favour of Richardson. I had contended, and still so do, that his ruling is an example of judicial over-reach by taking the High Court far outside its remit into the inherently political minefield—best left to the legislature—of what is good or bad for democracy. The Guyana Court of Appeal however later upheld the High Court decision. But on what grounds, I cannot exactly say since I have not read the opinion (where are our court websites?).

However, the brilliant and intellectually nimble presentation before the CCJ by TT lawyer Mendez, on behalf of Richardson, made clear that the opinion of former CJ Chang has been abandoned in favour of a simpler, legally tight, and political-free argument.

As Mendez emphatically argued, the CCJ has no need to reach the question of whether imposing a term limit makes Guyana more democratic or less democratic (as our High Court did). Instead, the only question for the CCJ to consider, he offered, is whether the term-limit provision undermines the sovereignty (supremacy) of the people by imposing conditions, set by others, on who could and could not represent them. True, he conceded, Article 9 does say that the people exercise this sovereignty “through their representatives”. But, he counterpunched, in what to me is the prize-winning argument in this case, it is not for the representatives (by passing Act 17 of 2000 in the National Assembly)  to tell the sovereign people for whom they can and cannot vote in any scenario;  it for the people themselves to so restrict themselves in a referendum. In other words, it is wrong for the Constitution to state that sovereignty belongs to the people, then flip-flop to say that somebody else, external to them (their representatives, in this case), can restrict that right to exercise that sovereignty. As a rough analogy, telling someone he is fully in charge is inconsistent with you then instructing him what he can and cannot do.

In so arguing, Mendez has shifted the gaze from Article 1 (Guyana is a democratic state) to Article 9 (Sovereignty belongs to the people). One sensed from the questions posed to Mendez by several of the CCJ justices that they initially saw nothing fundamentally wrong with term limits. The President of the CCJ even mentioned that he too can only serve one term. But by the end, Mendez’s intellectual tenacity and expert presentation skills may have swayed the bench in favour of his client, Richardson. The country therefore is more than likely to see a Jadgeo candidacy in 2020.

Yours faithfully,

Sherwood Lowe

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