…AG tells CCJ Chang, Carl Singh erred in applying Basic Structure Doctrine in third term case
ATTORNEY-General, Basil Williams on Monday told the full bench of the Caribbean Court of Justice that two former top judicial officers here had erred in applying the Basic Structure Doctrine in the ‘third term case’ even as he asserted that the term-limit act is valid.
Williams and a battery of lawyers are challenging a Court of Appeal ruling in the case brought by the relatively unknown Cedric Richardson on the presidential term-limit. The ruling was initially challenged by both the state and former Speaker of the National Assembly, Raphael Trotman. Trotman has dropped out of the case. The state is being represented by Williams SC, Solicitor-General Kim Kyte-Thomas, State Counsel Uteika John and Barbadian Queens Counsel, Hal Gallop and Ralph Thorne. Richardson was represented by Douglas Mendes of Trinidad. The case is being keenly watched and many feel that former President Bharrat Jagdeo has played a big role in the challenge of the term-limit, but he and his party have always denied this.
Richardson of Laing Avenue, Georgetown, in a constitutional challenge, just before the May 2015 General and Regional Elections contested the amendments made to Article 90 of the Constitution that were enacted in 2000 following a bipartisan Constitutional Reform Process. Article 90 (2) states that, “a person elected as President after the year 2000 is eligible for re-election only once.” He argued that that the term-limit infringes on Articles 1 and 9 of the Constitution wherein Article 1 states that “Guyana is an indivisible, secular, democratic, sovereign state in the course of transition from capitalism to socialism and shall be known as the Co-operative Republic of Guyana” and Article 9, states that “Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution.”
However, Williams, the first-named appellant had argued that amendments made to Article 90 are not unconstitutional. In his opening arguments Monday the attorney general told the CCJ that the High Court and Court of Appeal of Guyana applied the Basic Structure Doctrine in the case. He pointed out that the doctrine does not apply to Guyana and any other CARICOM country that has a constitution that mirrors the Westminster model. The Basic Structure Doctrine which is an Indian judicial principle that the Constitution has certain basic features that cannot be altered or destroyed through amendments by the Parliament. The doctrine applies only to constitutional amendments.
But Williams argued that “where legislation is passed in accordance with prescription- in terms of manner and form, the court ought not to inquire as to the propriety; the substance of that legislation.”
Citing several authorities, Williams noted too that the Basic Structure Doctrine was applied in both the High Court and Court of Appeal. He said the Learned Chief Justice (as he then was) Ian Chang and Chancellor (as he then was) Carl Singh, erred when they enquired as to whether the restriction of the third term was constitutional. The Guyanese AG rejected outright the use of the concept of Basic Structure Doctrine noting that it does not apply to the Guyana Constitution and noted that the learned Chief Justice and Chancellor both overstepped their boundaries. “The Act was validly passed. The only question is whether it conforms with the constrictions on Article 164 (2) (6) of the Constitution. Our submission is that it did,” he posited.
Williams then provided the court with the background to the amendments made to the Constitution in 2000. He explained that the amendments were passed unanimously as both the government at that time and the opposition agreed after consultations with civil society and other stakeholders. “The Act was assented to by the then President Bharrat Jagdeo,” asserted Williams who noted that the amendment to Article 90 of the Constitution only allows a person to be president twice.
“The legislation came out of post-election trauma and chaos,” said Williams who noted that it was by virtue of the Herdmanston Accord that there was Constitutional reform resulting in the effected amendment. The Herdmanston Accord originated from CARICOM’s intervention via mediation here to ensure that the country returned to a state of peace and normalcy. It was as a result of that intervention that the pact was signed. The Accord was not originally filed by the AG and his team but leave was granted for the AG to enter into an agreement with Counsel for Richardson, Douglas Mendes SC to have that document submitted as it may prove vital to the judges understanding of what occurred in 1997.
Meanwhile, Solicitor- General Kyte-Thomas in her brief presentation raised the issue of delay. She argued that while the issue of delay was not raised in the Supreme Court or the Court of Appeal it is important. “We acknowledge, your honour, that there was no limitation in other Constitutions in respect to the bringing of constitutional claims and seeking constitutional relief. However, the courts around this Region have spoken.”
She pointed to case law where it was ruled that a litigant cannot sit idly by and then years after go to the court seeking redress. She reminded that the court found in many instances that delay may defeat a constitutional motion. “The issue is how relevant is that question to what this court has to examine. It is very relevant because when one looks at the social and historical evolution of Act #17 of 2000 and the reason for the birth of this Act delay becomes extremely relevant and I ask this court to perhaps look at the question of delay as a factor when you consider a holistic view of this matter.”
She like Williams, noted the civil unrest which occurred in Guyana following the 1997 elections and the subsequent signing of the Herdmanston Accord. “Your honours; this is not just a question of third term. Mr Richardson your honours, decided to sit idly by after 14 years…and now to approach the court… [This] can certainly be a factor for this court to view as an abuse of the process of the court. ”
Kyte-Thomas added that the court has “an inherent jurisdiction to protect itself from the abuse of its own process.” She posited that the Act was validly passed and that Parliament had complied with all of the pre-requisites for passage of the Act.
NO ABUSE OF PROCESS
But Kyte-Thomas’ argument was countered by Mendes who stated that the delay spoken of by the Solicitor-General could not be viewed as an abuse of the court. “It is not an abuse of the process of the court. The passage of time does not purify a law that is unconstitutional. This Act infringes Articles 1 and 9… [And] delay cannot constitutionalise an unconstitutional statute,” he argued.
He reminded the court that the issue of delay was not raised in the High Court or the Court of Appeal and posited that for the Court to say that it will consider delay would prove “extraordinary”.
“It would be unfair for the court to determine the case on delay…that is just wrong, unfair and contrary to the rule of law,” Mendes said while adding that if the appellants had raised the issue of delay in the lower courts then it would have been properly raised before the CCJ.
“…Delay cannot protect an unconstitutional law,” he declared. Additionally, the Trinidadian senior counsel argued that once a total disqualification for running for the office of president is created then “you are infringing the right of the electorate to choose someone of their choice.” “That right is located in the combination of Articles one and 9. You either agree or disagree with that…that is the question in this case,” he said as he argued that sovereignty belongs to the people.
“The people have created a constitution by referendum by which certain rights are bestowed by Article 9…sovereignty of the people which they exercise through their representatives is immediately undermined as you begin to limit the persons they can choose as their representatives. The people must have a free choice as to who their representatives are. – Sovereignty means they have complete control,” the attorney stated as he asked judges to uphold the decision of the majority of the Court of Appeal and dismiss the appeal by the AG.
Meanwhile, Gallop QC noted that the majority ruling of the Court of Appeal handed down by Chancellor Singh (as he then was) was flawed as the Chancellor “failed to come to grips with the meaning of sovereignty in Articles 1 and 9.”
“That failure led to what may be considered as some element of flights of fancy which did not help us understand what should guide the court in interpreting Articles 1 and 9.” Gallop said too that Richardson’s written submission also posed difficulty as he contends that the responsibility of defining the meaning of the word sovereignty rests upon the court; something Gallop said the Chancellor failed to do. The Barbadian Queens Counsel lawyer argued too that the power bestowed on the people of Guyana was transferred to the Parliament by the people so that the sovereignty of the people remained guaranteed by their own Act.
“In the absence of a properly defined concept of sovereignty by the learned Chancellor, it is our submission that the respondent has failed to show how Articles 1 and 9 had been amended or altered in any way to an extent that the sovereignty of the people have been taken away.”
Gallop said too that the sovereignty of the people being demonstrated by what they have committed the parliament to do. “The political directorate demonstrates what the people wish to have done and the remedy for failure in that regard is a political remedy I would respectfully submit. You vote them out but there can be no question that a parliament properly constituted in the manner and form of the constitution, making amendment to laws in the manner and form stipulated by the constituted is acting within the power of the constitution.”
Gallop contended that when issues of sovereignty and rights are not spelt out into the constitution, the court is invited “to take a flight of fancy”; to impose a number of subjected views on what may be constituted as rights. “This in our submission of the court is the difficulty which the High Court and Court of Appeal found itself.” He stressed that in the absence of clearly defined terms in the constitution, “we are going into the realm of politics”. “A court should not bring its own interpretations and make its own interpretations so expansive as to trespass on that organ of the state to whom the right to legislate has been given by the constitution,” he stated.
He opined that in the absence of clearly expressed terms or defined concepts, a court should restrict itself to what the constitution says is allowable. In this regard, Gallop said the Chancellor confused himself by applying a faulty definition of sovereignty. The QC posited that given the conciseness of Article 9, which says that “sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution”, the court is empowered to make a proper determination on what properly constitutes sovereignty.
“As long as a provision conforms to the manner and form of the constitution, Parliament can turn a man into a woman,” he added.
NO ALTERATION BY IMPLICATION
For his part, Thorne QC stressed in his submission that Articles 1 and 9 of the Constitution cannot be altered by implication. He said too that the courts in Guyana have looked at Articles 1 and 9 selectively as the lower courts have extracted selective words. “There has not been a holistic reading of the articles. Articles 1 and 9 compose of political concepts, as embattled as they are…no one in the High Court, Court of Appeal nor written submissions from the other side has asked the question, ‘what is the definition of socialism?’”
Thorne went further to state that interpretation of Articles 1 and 9 involves political judgment and noted that the court is entitled to make political judgments but outline the thin line between political and legal concepts such as sovereignty, and democracy. “I would like to submit that what the Guyana Court of Appeal did was to make political judgments with constitutional consequences…it is a constitutional consequence that is indeed undemocratic. The essential deficiency in the court of appeal judgment is that it has not cared to define indivisibility, secular…transition from capitalism to socialism…all it speaks of is sovereignty.”
Thorne declared that Article 9 of the Constitution does not define sovereignty but it locates sovereignty. He said while the Constitution has not defined the term the court has to power to so do. “But when the court defines it, it must not define it in such a way that it has egregious constitutional consequences…this court may wish to caution itself against a ruling of the majority of the court of appeal when it is clear that a limit of a term of the person who occupies the highest office is done to defend the integrity of a system.”
He said a term limit is instituted to give opportunities to many instead of one person as is the case in China. “The amendment is democratic,” he argued as is in the United States of America and Trinidad and Tobago. “There is in this part of the world revulsion of experiences of persons having indefinite stays in office. That is what Caribbean people are revulsed by when politicians who stay in office… let us stay indefinitely. Constitutions and the people try to safeguard the system so that one person does not occupy the office indefinitely,” the Barbadian Lawyer contended. The court matter was presided on by Sir Dennis Byron, and Justices Adrian Saunders, Jacob Wit, David Hayton, Winston Anderson, Rajnauth Lee and Denys Barrow.