…AG says CCJ decision upholds intentions of the Guyanese people

ATTORNEY General and Minister of Legal Affairs, Basil Williams, SC, has described as a “great victory” for Guyanese and also a big blow to racism here, the Caribbean Court of Justice’s (CCJ) ruling on Tuesday upholding the constitutional restriction of a presidential two-term limit.

Speaking with the Guyana Chronicle while enroute to Paris, France, for a Financial Action Task Force (FATF) Plenary meeting, Williams said that the 6-1 majority decision handed down by the full bench of the court could be used to ensure that future elections in Guyana are based on issues and not the colour of people’s skin or the texture of their hair. “I believe this is a serious blow to racism in Guyana.”

On Tuesday, the CCJ by a majority ruled that the amendment to the presidential term limit is constitutional, thereby overturning the decisions of the High Court and Court of Appeal earlier on the matter. The majority decision comprised separate judgments of CCJ President Sir Dennis Byron, Justice Adrian Saunders and Justice Jacob Wit, while a detailed dissent was delivered by Justice Winston Anderson.

Cedric Richardson just before the May 2015 elections had challenged the state on the constitutionality of an amendment to Article 90 of the constitution which added the further qualifications that a candidate for President of the Republic must be a Guyanese by birth or parentage, residing in Guyana on the date of nomination for election, continuously resident in the country for a period of seven years before nomination date and must not have served as President for two terms. Richardson, who was represented by Trinidadian attorney Douglas Mendes, in his arguments said that his right to choose whomsoever he wanted to be President, impliedly conferred by Articles 1 and 9, had been diluted by the alterations to Article 90 as it disqualified former President Bharrat Jagdeo who had previously served two terms as President.

As such, he applied for orders that would invalidate the amendment to the constitution on the ground that the manner and form for altering Articles 1 and 9 had not been followed. To amend these articles, the amendment had to be supported by a majority of voters in a referendum.

Then High Court Judge, Ian Chang (Ag), ruled in favour of Richardson and his judgment was affirmed by a majority of the Court of Appeal. Both courts held that the amendment, by excluding many persons as contenders for the presidency, diluted the right of the people to elect a President of their choice inherent in Articles 1 and 9 and as such a referendum was needed to make such an amendment.

Williams in appealing the Court of Appeal decision had told the full bench of the CCJ 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. He had argued that amendments made to Article 90 are not unconstitutional.

The attorney general told the CCJ that the High Court and Court of Appeal of Guyana had 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 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.

Confidence in CCJ
The AG said he has always placed confidence in Guyana’s final court of appeal as it is equipped with eminent judges. “That decision [CCJ decision] of course was a decision which upheld the intentions of the Guyanese people which would have been reflected in that amendment to introduce term limits in the interest of the Guyanese people,” said Williams. The attorney general who had presented arguments before the Trinidad and Tobago-based court in March, told this publication that since the introduction of the presidential term limits, there have been four national elections and one local government election, none of which saw post-election violence.

“That says a lot and in addition, we have had novel changes in governance a majority parliament with a minority government and now a one-seat difference. These changes have occurred. It is a victory for the Guyanese people,” said Williams.

Moreover, the AG believes that the decision justifies Guyana’s clamour in the past to have a final court of appeal that was other than the court of appeal of Guyana. “We welcome the CCJ and so we have to try to support the CCJ, give it sustenance,” he told the Guyana Chronicle.

The CCJ’s ruling is also seen as a reprimand to the decisions of the High Court and Court of Appeal here that had upheld that amendment to the constitution with respect to the term limit infringes on the electorate’s right to freely choose a candidate to be elected president. “I think it is a justification because you had two decisions one at the Supreme Court and Court of Appeal and the ability to pursue justice and go to the final court and be successful speaks volumes. Every Guyanese should feel that justice was done for them,” Williams stated.

Fed up of racism
The AG said citizens are fed up of racism and racial elections in Guyana, while accusing the opposition People’s Progressive Party (PPP) headed by former President Bharrat Jagdeo of trying to divide the country along racial lines. “They have practised the politics of division.

Jagdeo is doing the same thing because he felt he would be able to get back into power with the race card, notwithstanding what happened in 2011 and 2015 and so everything he was seeing race in and claiming race,” declared Williams. He reminded too that it was Jagdeo who had signed into law the presidential term limits legislation.

“It is a good victory for the Guyanese people and we could use this victory and ensure that future elections in Guyana are based on issues and not the colour of people’s skin or the texture of their hair. I believe this is a serious blow to racism in Guyana.”

Court not to enquire
During the court hearing, Williams had argued that “where legislation is passed in accordance with prescription– in terms of manner and form– the court ought not to enquire 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 had both overstepped their boundaries. “The Act was validly passed. The only question is whether it conforms to 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.

Williams had also told the court that the “legislation came out of post-election trauma and chaos,” noting 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 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 had occurred in 1997.

Well-reasoned
Back home, attorneys who worked along with Williams in the case hailed the ruling as “well-reasoned and sound.” Speaking with reporters at the Court of Appeal here, Queen’s Counsel Ralph Thorne who along with his countryman Hal Gollop, Solicitor-General Kim Kyte-Thomas and Uteika John made it clear that comfort should not be taken in the dissenting judgment in favour of Cedric Richardson, the man who questioned the constitutionality of the amendments made to the Constitution (Amendment) Act 2000.

“I won’t want the opposition to take any comfort in the dissenting decision, because implied in that dissent is a criticism of an amendment that was done by the opposition when it was in government in the first place. So there is no comfort to be taken there; as I understand it, when that amendment was made Mr Jagdeo was in government and he made the amendment, so that dissenting judgment criticised what he did then,” Thorne said.

He said the ruling is important as a law which was passed by a Parliament unanimously and that was overturned in the lower courts was upheld at the highest court in the land. “It was absolutely important that a law upon which this country was united, a law upon which the assembly was united should not be struck down purely for the purpose of individual ambitions. It is important that the CCJ has dealt with it.

It is the final stage in the appeal and this country will remain at peace,” the Barbadian attorney told reporters.
Similarly, Gollop, QC, noted that the dissenting view by Justice Winston Anderson does not capture the fact that there is already exists a system of proportional representation. Like her colleagues, the solicitor-general said her team has been vindicated.

“We have been very strong in our arguments, in the High Court, Court of Appeal and we are very happy that a well-reasoned and sound decision of the CCJ has basically upheld what we have been saying for all these years.”