Attorney General, Basil Williams,is maintaining that the ruling made by former Chief Justice Ian Chang in the presidential term limit case was flawed and should be struck out. Williams’ submission comes ahead of a ruling in the appeal that was filed by Williams and former Speaker of the National Assembly, Raphael Trotman. Last month, acting Chancellor of the Judiciary,Carl Singh,began hearing the appeal against the decision of Justice Chang that scrapped the presidential term-limits and granted leave to the appellants, Attorney General Williams and former Speaker of the National Assembly, now Minister of Natural Resources,Raphael Trotman,to submit their submissions in writing. The case will be called again on Wednesday, when the chancellor is expected to rule.
Just before the 2015 General and Regional Elections, Cedric Richardson, a resident of Georgetown had challenged the Amendments to Article 90 of the Constitution that were enacted in 2001 after the bipartisan Constitution reform process; that amendment placed term limits on presidents.
Justice Chang subsequently 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.”
However, Williams in his submission made earlier this month contends that the application made by Richardson is void ab initio as the applicant through his attorneys Shaun Allicock and Senior Counsel, Douglas Mendes has based his application on Act No.17 of 2001. “However, the first-named appellant/ defendant notes that there is no Act No.17 of 2001 and will therefore contend that the application is void ab initio. The first-named appellant/ defendant will further contend that this a fatal flaw in the originating summons and should have resulted in its dismissal at first instance.”
Williams also argued that the alteration of Article 90 by the provisions of Act No. 17 of 2000 was not unconstitutional as Article 90 deals with the qualifications of a presidential candidate both before and after the alteration. Act No. 17 of 2000 also altered article 90 by the correct procedure under Article 164 (2) (b) of the Constitution, he submitted.
“The aforesaid article was altered in accordance with article 164 of the constitution which provides that a Bill for an Act of Parliament to alter this constitution shall not be passed by the National Assembly unless it is supported at the final voting in the Assembly by the votes of a majority of all the elected members of the Assembly.”
As such,Williams argued that based on the provisions of Article 164 (2) (b) of the constitution permits alterations to Article 90 of the Constitution once it is done in line with the prescribed procedure. “This procedure requires that it be passed in Parliament with a two-thirds majority and referred to the electorate for a referendum vote. However, the proviso further states that the use of the referendum vote is not required if the alteration does not affect Articles referred to in Article 164 (2) (a).”
Williams,who is also the first named appellant in the case contends that Article 90 encompasses limitations or restrictions on who can qualify to be a candidate for president. Williams as a result contends that the qualifications of a presidential candidate is not “part of the basic structure of our Constitution and in fact forms part of the section of Article 164 (2) which can be amended without resorting to a referendum vote once it does not alter articles referred to in Article 164 (2) (a).”
Additionally, the Attorney General in his submission said that the electorate is required to select the list which has been presented to them and it is for the political party and not the voter to select who the presidential candidate will be. “The voter is obliged to vote for the party list which is deemed to be a vote for the identified presidential candidate. It is not for them to choose who is to be placed on the list.”
As such he argues that the electorate has “no democratic right to choose who will become the presidential candidate;their right is to vote for the party list of their choice” while noting that the former acting Chief Justice failed to address the electoral system of Guyana in his decision.
He also submitted that Act No.17 of 2000 is not ultra vires the Constitution as the alteration referred to above was done in compliance with Article 164 (2) (b) of the Constitution. The Act he argued did not alter or change any of the provisions of Article 164 (2) (a) of the Constitution as is alleged by the plaintiff.
Meanwhile, Senior Counsel Williams argued that Richardson through his attorneys also failed to show how his democratic rights or his right to exercise his democratic rights have been affected by the alteration to Article 90.
“The appellant/ defendant will therefore contend that the respondent/ plaintiff has not established that he has an interest or right which is affected nor has he established that he is acting on behalf of parties who have an interest or right which is affected. In the circumstances, the appellant/ defendant will contend that the respondent/plaintiff has no locus standi to bring this action.”
Addressing whether an originating summons is the appropriate process for instituting these procedures, the Attorney General contends that the respondent/ plaintiff chose to invoke the Constitutional jurisdiction of the court by way of an originating summons and believes that the respondent/plaintiff has to establish that there is a statute or rule of court which permits him to bring the application by way of originating summons. “It is therefore respectfully submitted that the respondent/plaintiff has not established the legal requirements to bring this application by way of Originating Summons and in fact ought to have approached the High Court for Constitutional relief by way of Writ of Summons since it is not an allegation of a breach of a fundamental right.”