Third term ruling set for Tuesday
The full bench of the Caribbean Court of Justice during a recent sitting at the High Court of Antigua and Barbuda to honour retiring President, the Rt Hon Sir Dennis Byron
The full bench of the Caribbean Court of Justice during a recent sitting at the High Court of Antigua and Barbuda to honour retiring President, the Rt Hon Sir Dennis Byron

THE Caribbean Court of Justice (CCJ) will next Tuesday hand down its decision on whether Guyana’s presidential term limit is unconstitutional.

According to the CCJ’s website, the judgment will be delivered at 10:00am at the court’s headquarters in Trinidad and Tobago. Tuesday’s judgment will determine whether the Court of Appeal’s decision that an Act passed by the government to amended Article 90 of the Constitution of Guyana by introducing new criteria for eligibility to run for the office of President of the Republic indirectly breached Articles 1 and 9 of the Constitution.

The CCJ’s ruling on the term limit will also determine if former president Bharrat Jagdeo who served two terms, will be allowed to run for a third term of presidency. Jagdeo, before demitting office back in 2011 had said that he would quit politics but has positioned himself to run again as the PPP’s presidential candidate. Many believe also that the constitutional challenge filed by the still unknown Cedric Richardson was engineered by Jagdeo.

The Court of Appeal last year had granted leave to Attorney General and Minister of Legal Affairs Basil Williams, and former Speaker of the National Assembly, Raphael Trotman to appeal the CCJ in the term limit case. Trotman has since pulled out of the appeal. Just before the May 2015 General and Regional Elections, Richardson, a resident of Georgetown challenged the amendments made to Article 90 of the Constitution that were enacted in 2000 following a bipartisan Constitutional Reform Process.

Richardson contended 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.”

Former Chief Justice (ag) Ian Chang had in July 2015 ruled in favour of Richardson which in effect prompted the Attorney General and Speaker of the National Assembly, the named parties, to appeal against the ruling. Justice Chang had said Article No.17 of 2001 is without legal effect because it does not comply with other articles of the constitution dealing with repugnancy, democratic society and sovereignty belonging to the people which require a referendum for any alteration.

Chang had reasoned that Article 1 and 9 underpin the republican commitment to the fundamental concept of popular sovereignty or imperium populi thereby safeguarding against elective despotism by the elected representatives of the people.

The Court of Appeal by a two-one majority in February, 2017 upheld Chang’s ruling that the presidential term limit is unconstitutional and void. Now retired Chancellor of the Judiciary (ag) Carl Singh, and Justice BS Roy upheld the High Court ruling handed down by former Chief Justice (ag) Ian Chang’s, while then Chief Justice (ag) now Chancellor (ag) Yonette Cummings-Edwards disagreed.

Meanwhile, in March 2018 attorneys representing the AG, Williams appeared before the full bench of the CCJ to present arguments as to why the Court of Appeal’s ruling in the case of the AG and Raphael Trotman against Cedric Richardson on the presidential term limit should be overturned. Williams was supported by Solicitor-General Kim Kyte-Thomas, State Counsel Uteika John and Barbadian Queens Counsel, Hal Gollop and Ralph Thorne while Richardson was represented by Douglas Mendes of Trinidad.

Williams 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 Act was validly passed. The only question is whether it confirms 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 Hermanston 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.

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