ATTORNEY for the second-named appellant, Raphael Trotman, in the presidential term-limits case, Roysdale Forde, on Friday submitted that the ruling made by Chief Justice Ian Chang was erroneous and did not reflect the true meaning of the Constitution of Guyana.Earlier this month, Chancellor of the Judiciary, Carl Singh, began hearing the appeal against the decision by Chang that scrapped presidential term-limits here. Justice Singh also granted leave to the appellants, Attorney General Basil Williams, the first-named appellant and Trotman, who at the time of filing the appeal was Speaker of the National Assembly, seven days to lay over and serve on the respondents submissions in writing. The case will be heard again on February 15.
Prior to the 2015 General and Regional Elections, Georgetown citizen Cedric Richardson had challenged the Amendments to Article 90 of the Constitution that were enacted in 2001 after the bipartisan Constitution reform process. The amendment placed term limits on presidents.
Chang later ruled that the presidential term limit was unconstitutional without the approval of the people through a referendum. He also ruled that persons who have become Guyanese citizens by virtue of registration can run for president. Article 90 of the Constitution states: “A person elected as President after the year 2000 is eligible for re-election only once,” and clause (3), which states, “A person who acceded to the presidency after the year 2000 and served therein on a single occasion for not less than such period as may be determined by the National Assembly, is eligible for election as President only once.”
Richardson is being represented by Shaun Allicock, who has been joined by Senior Counsel, Douglas Mendes.
Meanwhile, Forde argued that an appeal should be allowed with costs as the amendment to Article 90 of the Constitution does not expressly, or by implication alter the provisions of Articles 1 and 9 of the Constitution respectively. Article 90, he submitted, does not affect Guyana’s indivisible, secular nature or its function as a democratic sovereign state as stated in the Article.
Similarly, the attorney posited that the amendment to Article 90 does not affect Article 9 as it relates to the sovereignty belonging to the people, the exercise of sovereignty of the people through their representatives and democratic organs established under the Constitution, nor does it restrict or limit in any way the freedom of expressing a choice and the casting of a vote at the ballot box in favour of any particular presidential candidate.
“It is submitted that the conclusion of the Chief Justice that Parliament by the enactment of the amendment to Article 90 of the Constitution fell foul of Article 1, is most misconceived,” said Forde in his submission.
Article 1 of the Constitution 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 Cooperative Republic of Guyana.”
While Article 9 of the Constitution states that “Sovereignty belongs to the people who exercise it through their representatives and the democratic organs established by or under this Constitution.”
The lawyer said the appeal raised several issues on the construction of the Constitution and pointed to whether in substance and effect the amendment to Article 90 of the Constitution by Act No.17 of 2001 altered whether expressly or by implication the provisions of Articles 1 and 9 other than in accordance with Article 164 (2) (a) of the Constitution.
“The secondary issues are therefore: What is the meaning to be given to the words “Democratic Sovereign State” in Article 1 of the Constitution of Guyana? What is the meaning to be given to the words “Sovereignty belongs to the people” in Article 9 of the Constitution of Guyana?”
Forde said the High Court did not find any breach of fundamental rights and noted that the National Assembly could have amended any fundamental right in accordance with Article 164 (2) (b) of the Constitution without a referendum.
“The cases relied upon by the Chief Justice are inapplicable, as in each of the cases cited by the Court there would have in fact been alterations to the basic structure of the Constitution, contravention of the doctrines of separation of powers, Rule of Law and breaches of fundamental rights.” He said that the adding of the term limit in Article 90 of the Constitution did not result in “the creation of a new thing or destroyed the identity of the thing affected, that is, another type of state, now was it a change in or modification, or variation in the State of Guyana or of the sovereignty of the people.”
“It is submitted that the amendment to Article 90 is not of such a nature that the Court can find that it had abrogated or destroyed the Constitution or as put by the Respondent and adopted by the Court “diluted”, “restricted and curtailed” or “diminished” or “reduced the levels of democracy enjoyed by the electorate.”
The attorney argued that nothing in the amendment removed democratic sovereignty from the people, or can be said to have resulted in the establishment of an autocratic or theocratic state or a state with a lower level of democracy. “It is submitted that the Chief Justice’s conclusion that there was a “dilution and diminution of democratic sovereignty” as a result of the amendment of the Constitution was arrived at without any examination or exposition as to the content of the concept of “democratic sovereignty.”
Additionally, Forde said it is important to note that the absence of an examination of the content of the term “democratic sovereignty” was a “quantum leap” to conclude that the amendment resulted in dilution and diminution of democratic sovereignty.
“It is also submitted that the learned Chief Justice misconstrued the words “sovereignty belongs to the people; It is submitted that the right to choose a Presidential Candidate for President of the Respondent’s or a citizen’s own choosing is a specie of the right of expression; It is also submitted that the exercise of a choice of a Presidential Candidate by the Respondent or a citizen occurs or culminates at the Ballot Box; It is therefore submitted that the right to choose a Presidential Candidate does not extend to the eligibility of or the disqualification of possible candidates for President,” said Forde.
He noted that the right of the respondent and any citizen of Guyana to choose or elect a presidential candidate of his choice in every election prior to Act No. 17 of 2001 remains the same right which existed after the enactment of the very Act.
Act No. 17 of 2001 by its amendment of Article 90 of the Constitution does not create a different right, he argued, while noting that the legislation is not in derogation of the right to choose or elect a person of the Respondent’s or citizen’s own choice as President.
“It is submitted that Act No. 17 of 2001 merely added disqualifications in respect of an individual citizen’s competence to be elected as President. The constitutional and statutory context in which the citizen and or the Respondent exercises his right to elect a person of his own choosing as President was not considered by the Chief Justice at all in his judgment,” he opined.
Justice Chang in his ruling found that as a matter of law, Act No. 17 of 2001 offended Articles 1 and 9 of the Constitution in that it curtailed the electoral democratic choices of citizens and that curtailment could only be given effect to by Referendum, pursuant to Article 164 (2) (a) of the Constitution of Guyana. “The Appeal before this Court raises issues of construction of the Constitution of Guyana for the Court’s determination. That is, whether in substance and effect the amendment to Article 90 of the Constitution of Guyana by Act No. 17 of 2001 altered whether expressly or by implication the provisions of Articles 1 and 9 of the Constitution of Guyana other than in accordance with Article 164 (2) (a) of the Constitution of Guyana.”