FACTS:
Mr. Cedric Richardson, the Respondent/Plaintiff, filed an Originating Summons seeking the court’s determination on the following questions:

(1) Whether Act 17 of 2001 (sic) which purports to alter Article 90 of the 1980 Constitution by way of a two third (2/3) majority vote of all the members of the National Assembly is unconstitutional and of no legal effect for reason of non-compliance with article 164(2)(b) of the Constitution.

(2) Whether Act 17 of 2001 (sic) which purports to alter Article 90 of the 1980 Constitution by way of a two third (2/3) majority vote of all the members of the National Assembly has the consequence (advertent or inadvertent) of restricting and curtailing the democratic rights and freedom of the electorate by purporting to eliminate from the executive Presidential candidature a person who has been re-elected as executive President, e.g. former President Bharrat Jagdeo.

(3) Whether Act 17 of 2001 (sic) which purports to alter Article 90 of the 1980 Constitution by way of a two third (2/3) majority vote of all the members of the National Assembly, in so far as it has had the effect of restricting and curtailing the democratic rights and freedom of the electorate providing for the non-eligibility of a person who has been re-elected as executive President for presidential elections candidature, required for its legal validity the holding of a referendum of the people.

(4) Whether Act 17 of 2001 (sic) which purports to alter Article 90 of the 1980 Constitution by way of a two third (2/3) majority vote of all the members of the National Assembly insofar as it has the effect of restricting and curtailing the democratic rights and freedom of the electorate enjoyed under the 1980 Constitution prior to its purported alteration by Act 17 of 2001 (sic) diminishes and reduces the level of democracy enjoyed by the electorate prior to the purported alteration and therefore required the holding of a referendum for such alteration.

ISSUES:
1. Whether the application is void ab initio.
2. Whether the altering of the qualifications of a Presidential Candidate in article 90 of the Constitution, by Act No. 17 of 2000 was:
(i) Unconstitutional and ultra vires article 164(2)(b) of the Constitution; or
(ii) A breach of the provisions of articles 1 and 9 of the Constitution and ultra vires Article 164(2)(a) of the Constitution.
3. Whether the Applicant has the requisite locus standi to bring this application.
4. Whether an Originating Summons is the appropriate process for instituting these proceedings.

LEGAL SUBMISSIONS:
ISSUE No. 1
1. WHETHER THE APPLICATION IS VOID AB INITIO.
The Respondent/Plaintiff has at all times based his application on Act No. 17 of 2001. However, the first-named Appellant/Respondent 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/Respondent will further contend that this is a fatal flaw in the Originating Summons and should have resulted in its dismissal at first instance.

ISSUE No. 2
2. Whether the altering of the qualifications of a Presidential Candidate in article 90 of the Constitution, by Act No. 17 of 2000 was:-

(ii) UNCONSTITUTIONAL AND ULTRA VIRES ARTICLE 164(2)(b) OF THE CONSTITUTION
The alteration of Article 90 by the provisions of Act No. 17 of 2000 was not unconstitutional. 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).

Article 90 of the Constitution, Act No. 2 of 1980. provided that:
A person shall be qualified for election as President and shall not be so qualified unless he –
(a) is a citizen of Guyana; and
(b) is otherwise qualified to be elected as a member of the National Assembly:
Provided that a person holding the office of President or otherwise discharging the functions of that office shall not on that account be disqualified for election as President.

Act No. 17 of 2000 amended the aforesaid article which now provides that:
(1) A person shall be qualified for election as President and shall not be so qualified unless he or she –
(a) is a citizen of Guyana and is Guyanese by birth or parentage as defined in articles 43 and 44;

(b) is residing in Guyana on the date of nomination for election and was continuously residing therein for a period of seven years immediately before that date; and

(c) is otherwise qualified to be elected as a member of the National Assembly.

(2) A person elected as President after the year 2000 is eligible for re-election only once.

(3) 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. (amendments underscored and emboldened)
The aforesaid article was altered in accordance with article 164 of the Constitution which provides that:

(1) Subject to the provisions of paragraphs (2) and (3), 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.

(2) A Bill to alter any of the following provisions of this Constitution, that is to say –

(a) this article, articles, 1, 2, 8, 9, 18, 51, 66, 89, 99 and 111; and

(b) articles 3, 4, 5, 6 and 7, 10 to 17 (inclusive), 19 to 49 (inclusive), 52 to 57 (inclusive), 59, 60, 62, 63, 64, 65, 67, 68, 69, 70, 72 (in so far as it relates to the number of regions), 90 to 96 (inclusive), 98, 108, 110, 116, 120 to 163 (inclusive, but excepting article 132), 168 to 215 (inclusive, but excepting articles 173, 185, 186, 192(2) and (3) and 193), 222, 223, 225, 226, 231 and 232 (excepting the definition of “financial year”)

shall not be submitted to the President for his or her assent unless the Bill, not less than two and not more than six months after its passage through the National Assembly, has, in such manner as Parliament may prescribe, been submitted to the vote of the electors qualified to vote in an election and has been approved by a majority of the electors who vote on the Bill:
Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the Assembly by the votes of not less than two-thirds of all the elected members of the Assembly it shall not be necessary to submit the Bill to the vote of the electors. (emphasis added)

It is therefore clear from the above that 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-third majority and referred to the electorate for a referendum vote. However, the proviso further provides that the use of the referendum vote is not required if the alteration does not affect Articles referred to in Article 164(2)(a).

Article 90 encompasses limitations or restrictions on who can qualify to be a candidate for President. The Indian Court of Appeal in the case Indira Nehru Gandhi v Shri Raj Narain and Another, Appeal (Civil) 887 of 1975 had to address the amendment to Article 392A of the Constitution which provided that the election of the Prime Minster and the Speaker cannot be challenged in any court in the country but instead provided for the challenge to be by way of a committee formed by the Parliament itself. Chief Justice Ray in the said case, stated at paragraph 140 that:

The right to stand as a candidate and to contest an election is not a common law right. It is a special right created by a statute which can only be exercised on the conditions laid down by the statute.
(emphasis added)

The Appellant will therefore contend that the Constitution makes provision for the alteration of this article without referring the bill to a referendum vote once it does not affect article 164(2)(a). There is therefore no restriction on Parliament altering the qualifications of a presidential candidate once it is done in compliance with Article 164.

The learned Chief Justice further relies on the theory of ‘basic structure’ in support of his decision that the alteration to article 90 alters articles 1 and 9. However, the learned author Durga Das Basu in his text Commentary on the Constitution of India, 9th Edition states at page 125 that:

In determining whether a particular feature is a part of the basic structure, one has to perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance. (emphasis added)

The learned author went on to refer to the case of Indira Nehru Gandhi v Shri Raj Narain and Another (supra) and stated that:

It was held that a constitutional principle to qualify as an essential feature, it must be established that this said principle is a part of the constitutional law binding on the legislature. Only thereafter the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending power of the Parliament, i.e., to form part of the basic structures. This is the standard of judicial review of Constitution of amendment in context of basic structure. (emphasis added)

In examining the tests identified by the learned author above, the first-named Appellant will contend that the qualifications of a presidential candidate is not a part of the basic structure of our Constitution and in fact forms a part of the section of the 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).

(iii) A BREACH OF THE PROVISIONS OF ARTICLES 1 AND 9 OF THE CONSTITUTION AND ULTRA VIRES ARTICLE 164(2)(a) OF THE CONSTITUTION

The Respondent/Plaintiff alleges that the alteration to Article 90 of the Constitution advertently or inadvertently alters Articles 1 and 9 of the Constitution. Article 1 of the Constitution provides 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.

Article 9 of the Constitution provides that:
Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution.

The first-named Appellant/Respondent will contend that the choice put to the electorate is to select the list which has been presented to them. It is for the 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.

This was emphasised in the case of Certification of the Constitution of the Republic of South Africa [1996] ZACC 26 at paragraph 186 where the court stated that:

Under a list system of proportional representation, it is the parties that the electorate votes for, and parties which must be accountable to the electorate. (emphasis added)

Similarly in the case of United Democratic Movement v President of the Republic of South Africa and Others (No. 1) [2003] 4 LRC 98 Chief Justice Chaskalson in discussing the proportional representation system stated that:

The election was contested by political parties who prepare lists of candidates. Although voters might have been influenced by the names of candidates, and possibly their place on the list, they voted for parties and not for particular candidates. (emphasis added)

In light of the above, the first-named Appellant will contend 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.

The first-named Appellant/Respondent will further contend that Act No. 17 of 2000 did not alter or change any of the provisions in article 164(2)(a) of the Constitution as alleged or at all and therefore there is no requirement for the bill to be taken to referendum. Act No. 17 of 2000 is therefore not ultra vires the Constitution since the alteration was done in compliance with Article 164(2)(b) of the Constitution.

Further, the Respondent/Plaintiff alleges that his right to choose the Presidential candidate of his choice has been affected by the alteration to Article 90 of the Constitution. The Respondent/Plaintiff relies on the cases of Powell v McCormack 395 US 485 and US Term Limits Inc. v Thornton 514 US 779, as did the former Chief Justice (ag), in support of this contention. However, the first-named Appellant will contend that Articles 59 to 64 and Articles 160 to 162 of the Constitution regulate the elections process in Guyana. Article 60(2) of the Constitution provides that:

Subject to the provisions of article 160(2), such number of members of the National Assembly, shall be elected in accordance with the system of proportional representation prescribed by article 160(1). (emphasis added)

Further, Article 160(1) of the Constitution provides that:

Subject to the provisions of the next following paragraph the system of proportional representation referred to in article 60(2) for the election of such number of members of the National Assembly as shall be determined by the Assembly, shall be as follows –

(a) votes shall be cast throughout Guyana in favour of lists of candidates;

(b) each elector shall have one vote and may cast it in favour of any of the lists; … (emphasis added)

It is therefore respectfully submitted by the first-named Appellant that the electoral system in Guyana is a proportional representation system in which the electorate votes for the party list and not the individual candidates. The system of electing a President in Guyana is addressed in Article 91 of the Constitution which provides that:

The President shall be elected by the people in the manner prescribed by article 177.

Article 177(1) of the Constitution provides that:

Any list of candidates for an election held pursuant to the provisions of article 60(2) shall designate not more than one of those candidates as a Presidential candidate. An elector voting at such an election in favour of a list shall be deemed to be also voting in favour of the Presidential candidate named in the list. (emphasis added)

The Appellant/Defendant will therefore contend that the electoral systems which exist in the United State of America (hereinafter referred to as the ‘USA’) and Guyana are distinct and different. In Guyana, unlike the USA the electorate votes for a list of candidates and not the Presidential candidate himself/herself. It is the party who chooses the Presidential candidate and the electorate votes for the list of candidates. Similarly, section 3(2) of the Representation of the People Act, Cap. 1:03, provides that:

Throughout Guyana, votes shall be cast in favour of lists of candidates published in accordance with section 19. (emphasis added)

It is noted that the learned Chief Justice(ag) did not address the electoral system of Guyana in his decision nor has the Respondent/Plaintiff in his submissions.

3. WHETHER THE APPLICANT HAS THE REQUISITE LOCUS STANDI TO BRING THIS APPLICATION.

The Applicant has based his locus standi to bring this application on the ground that his right to choose the Presidential candidate of his choice was being affected by the constitutional alteration to article 90. However, as is discussed above the electorate does not choose or vote for a Presidential candidate but votes for a list of candidates.

In the case of Gordon v Minister of Finance and Others (1968) 12 WIR 416 the Applicant, alleged that his interest as an elector, taxpayer and nominated member of the House of Assembly had been affected by the non-compliance with and the procedure followed by the House of Assembly for enacting the Appropriation Act 1968. Justice Bishop in the said case of stated at page 419 thus:

It seems clear to me from a consideration of these subsections that, firstly, it is not just any person who makes an allegation of a contravention of the Constitution of the State who has the right of application to the High Court. This right is specifically conferred upon a person with a relevant interest- not just an interest, but a relevant interest. Further, a person is to be considered as having a relevant interest if the contravention which he alleges, is a contravention that affects his interests. (It is not his interest in or concern over the matter.)

It has not been disputed, and I share the view, that the onus rests on the applicant to establish to the satisfaction of the court that he is a person who is qualified under the subsection, and unless he proves his qualification then his complaint cannot be entertained by the court. In other words, the applicant must prove that such contravention of the Constitution as he alleges, is one which affects his interests. (emphasis added)

In light of the above, the first-name Appellant/Respondent will contend that the Respondent/Plaintiff has failed to show how his constitutional rights or that 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 application.

4. Whether an Originating Summons is the appropriate process for instituting these proceedings.

The Respondent/Plaintiff chose to invoke the Constitutional jurisdiction of the Court by way of an Originating Summons. in the case of Raphael Trotman, Khemraj Ramjattan, Sheila Holder, David Patterson and Chantalle Smith v Attorney General of Guyana, Civil Appeal No. 79 of 2006, the Applicants filed an Originating Summons following the outcome of the 2006 General Elections, seeking a declaration that Parliament is a necessary arm of the State of Guyana and must be convened in a timely manner and within the paramaters of the Court. However, Justice of Appeal Ramson, as he then was, stated thus:
Recognising the clear discretionary nature of this remedy ORD 42 r. 5 expressly provides:
“The Court or Judge shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on Originating Summons”.
This rule therefore enjoins the Court to be more vigilant than it would normally be in exercising this especial jurisdiction conferred upon it by s. 10 of the aforementioned Act and is given a restrictive interpretation. (emphasis added)

Similarly, in the case of Pierre v Mbanefo and Other(1964) 7 WIR 433 the Applicant filed an Originating Summons to be issued at the High Court claiming redress under section 6 (1) of the Trinidad & Tobago Constitution; alleging that one or more of the specified provisions of the constitution have been or likely to be contravened in relation to him. Chief Justice Wooding in determining whether the use of the Originating Summons was appropriate stated at page 436 of his decision that:
There is no right in a litigant to commence anysoever proceedings by originating summons. He may do so only when expressly required or permitted by an enactment or a rule of court.

The Respondent/Plaintiff therefore has to establish that there is a statute or rule of court which permits him to bring this application by way of Originating Summons. Order 42 Rule 2 of the High Court Act, Chapter 3:02:

Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an Act, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed.

The requirement of a declaration as to the rights of the parties was also emphasized in the case of Lewis v Green [1905] 2 Ch. 340 where the court was asked to address questions in relation to the construction of a deed. In considering whether the use of an Originating Summons was the appropriate procedure Warrington J., stated at page 343 that:

In the first place, the order is confined to questions of construction. Of course, in a sense, every question of construction may involve some question of fact. It may be a question about which there is no dispute, but in order to raise any question of construction some facts must be proved or admitted. But for all that the order is confined to enabling the Court to decide questions of construction and nothing else, and the order does not enable the Court to grant any relief; it can only determine the question of construction, and declare the rights of the parties.

Similarly, in the case of Melville and Others v Melville (1996) 52 WIR 335, the court was asked to address whether the use of the Originating Summons was appropriate where the issue to be addressed was a dismissal. Justice of Appeal Patterson, stated at page 339 that:

These provisions confine the court to deciding questions of construction of instruments in writing and to declare the rights of the persons interested under such instruments. They do not enable the court to grant any relief whatsoever. The declaration of the rights of persons interested under the instrument must follow on the determination of the question of construction. Where there no question of construction the procedure by originating summons is inappropriate.

In the case of Russian Commercial and Industrial Bank v the British Bank for Foreign Trade Limited [1921] 2 A.C. 438 an English bank obtained a loan from a Russian bank on the security of certain bonds. A question thereby arose in relation to the construction of the contract as to whether the loan was repayable in roubles or in sterling. Lord Dunedin in the case of the aforesaid case stated, at page 448, of his judgment that the requirements under an Originating Summons are:

The rules that have been elucidated by a long course of decisions in the Scottish Courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor that is to say, some one presently existing who has a true interest to oppose the declaration sought.

It is therefore respectfully submitted that the Respondent/Plaintiff should 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: Kent Garment Factory Limited v the Attorney General-Guyana and Another (1991) 46 WIR 178. In the said case the applicant filed a Constitutional Motion alleging that breaches of his fundamental rights, however, the court held that the applicant had approached the court with the wrong procedure as his allegation of a breach of his fundamental rights did not fit within any of the provisions regarding fundamental right in Articles 138-150 of the Constitution.

CONCLUSION
In light of the above, the first-named Appellant/Defendant will respectfully contend that it is the party and not the electorate who choose the Presidential candidate and therefore the Respondent/Plaintiff has no democratic right to choose who the Presidential candidate will be.

The first-named Appellant/Defendant will further contend that the alteration to article 90 of the Constitution has not altered articles 1 and 9 of the Constitution as alleged or at all and therefore did not require a referendum vote.