Dear Editor,
WITH an unaccustomed and uncharacteristic degree, and exhibition of incredulity and incomprehension, Sherwood Lowe writes, “After listening to the entire video stream of the presidential third-term case (the Attorney General of Guyana, Raphael Trotman V. Cedric Richardson) argued before the CCJ last week, I can only conclude that the CCJ would find it extremely difficult to reject the argument put forward on behalf of Richardson” ( SN, Tuesday, March 20th, 2018 under the caption, “Mendez has shifted the CCJ gaze from Article 1 to Article 9 of the constitution”). I reject Lowe’s conclusion as incredulous, as being against the weight and constitutional soundness of the argument and submissions on the attorney general’s side; and moreover, as being in defiance of common sense and constitutional logic. Here is my reasoned justification, predicated on a broad question of constitutional logic: can an amending Act (17/2000) require a referendum to amend an article (article 90) which in itself (article 90) does not require a referendum for its alteration/amendment? I answer this question at the end.

FIRST, the justices of the CCJ are not some 12-member jury of impressionable laymen/women, and so, no matter how impressed or over persuaded Mr Lowe is of the “brilliant and intellectually nimble presentation before the CCJ by the T&T lawyer Mendez” at the end of the day, what the justices would be directing themselves about, and reaching their decision on, is the soundness or weakness (as the case may be) of the submission, and arguments, pro and con.

The starting point in unmasking Mendez’s so called “brilliant” presentation, and exposing Lowe’s utter incomprehension of the salient juridical issues raised in this matter is, of course, the fundamental constitutional principle of constitutional interpretation of the (rebuttable) PRESUMPTION OF CONSTITUTIONALITY OF ACT 17/2000 (sic) and by extension in this matter, the amended article 90. Self evidently, this principle favours the attorney general. And the question to which the justices would be directing their minds, and asking themselves is : has the Respondent Richardson discharged the “heavy burden” (see Massiah, C in Attorney General V. Mohammed Ali (1987) 41 WIR 176; Hector V. A.G. of Antigua and Barbuda (1990) 37 WIR 216 PC) of rebutting that presumption? I submit that Mendez could not have discharged such a “heavy burden,” given that the CCJ would be expected to give full weight to that presumption, by his main argument being what, even the usually erudite Sherwood Lowe is constrained to unjuristically call, a “flip flop” argument. So, Lowe writes in paraphrasing, Mendez’s palpably convoluted and confused arguments, that it is Mendez’s “brilliant” submission that – “… it is wrong for the constitution to state that sovereignty belongs to the people, then flip flop to see that somebody else external to them (their representatives, in this case) can restrict that right to exercise that sovereignty”. I submit that the notion that the constitutional can flip flop, is heresy. The makers of the constitution must be credited with meaning what they have written, and intending to mean what they have written, and what they have written in Article 9 is called “representative democracy”. Article 9 does not vest in the “people” any absolute sovereignty. And just as how we elect government/president (the Executive) to exercise our “sovereignty” at the level/ or branch of the Executive, so it is equally true that by those very General Elections we, concurrently, elect our parliamentarians (the Legislature) to exercise our “sovereignty” for us at the level or branch of the Legislature. Mendez’s “flip flop” argument is but an invitation for the introduction of Rule by Referendum into our constitutional system in place of rule by government. The CCJ must condignly reject it. A constitution must be interpreted according to the limitations of its own wording, and not to limitations that wording does not import. And the relevant wording here is “sovereignty belongs to the people, who exercise it through their representatives …” (Article 9). Has Article 9 so worded placed any limitations on this exercise by representative democracy? Not at all. So, none can be imported into Article 9. Can Mendez’s heretical flip flop argument impugn this conclusion based on that principle of constitutional interpretation?

So, I turn now to where the constitution has by its wording and scheme, imposed limitations on the statute-making powers of the people’s representatives (the parliamentarians) in the exercise of representative democracy. This brings me to Article 164 (2)(a) and the requirement (a limitation) of referendum worded exhaustively to “this article, articles 1,2,8,9,18,51,66,89,99 and 111”. Immediately, one notices that there is no mention of “90” in this exhaustive tabulation. And that is the gravamen of this case. Not some “flip flop” argumentation. Article 90 is among the articles listed or mentioned in another sub-article 164(2)(b) – this sub-article does not deal at all with the requirement or limitation of referendum. By and under this article 164(2)(b), no referendum is required to alter or amend Article 90. And the reader is reminded that it was an alteration or amendment of Article 90 (by Act 17/2000) that caused the two-term limit to now be in the constitution. It is not as if that Act 17/2000 standing by itself, was newly inserted into the constitution and thereby by such insertion, this two-term limit was introduced. So, Act 17/2000 has to be considered as if it were one and indivisible with Article 90, which requires no referendum for alteration. It seems to me, that the point cannot be stressed enough, that in our constitutional scheme of things, and to a constitutional lawyer (a politician might have a different politician’s perspective), a referendum was never intended as a means of exercising “sovereignty”. And it is this perspective that is the flaw in Mendez’s argument. (ie a referendum) It is predominantly a device (and was intended) for super entrenchment (i.e. protection from being easily or ordinarily changed in the future) of certain matters/institutions; and it finds no place in our constitutional affairs other than where the constitution makers has placed it in Article 164 (2)(a) to the exclusion of all other affairs (expressio unius est exclusio alterius – i.e. the expression of one thing is the exclusion of all others not mentioned).

Mendez “flip flop” argumentation, if accepted by the CCJ, would have the bizarre consequence of removing, sub silentio, Article 90 from Article 164 (2)(b) list (that has nothing to do with referendum) and placing it in article 164(2)(a) (that alone, and exhaustively, deals with referendum). Such judicial law-making (by sleight of hand as it were, perhaps surreptitiously) the doctrine of separation of powers does not permit. And this is a point strenuously argued by the learned attorney general’s side.

Second, under the separation of powers doctrine, the courts are not permitted to substitute their sense of people’s desire and wishes, for and in the place of those who, by Articles 9 and 51, has been entrusted by the constitution itself, with the role and responsibility for laws for peace, order and good government and accordingly of speaking via the legislative process for, and on behalf of the electorate (as to their desires and wishes) of which Cedric Richardson is but one of some four hundred thousand (400,000) plus, of us. By Article 164(2)(a), the constitution makers have predetermined the unworkability of expensive and rarified referendum for such matters as is provided for in Article 90 (“Qualifications for Election”) by excluding Article 90 from Article 164(2)(a). As to this impermissibility of judicial substitution: Lord Wilberforce in the English House of Lords (one of the contemporary great English jurists) hit the proverbial nail squarely on its head, and might well have been speaking for Caribbean jurists when in an analogous constitutional context, his Lordship made this most poignant observation – “Furthermore, while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubts in interpretation in their favour, it is NO PART OF THEIR DUTY, OR POWER, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process” [IRC V. Rossminister Ltd (1990) 1AII ER 80] I think rejecting and overruling the people’s choice for term limits expressed in the amendment of Article 90 via that Act 17/2000 made by the people’s representatives in the Parliament, would be in Lord Wilberforce’s clarion warning “to weaken rather than advance the democratic process”. And this is, with due respect, what Chang, CJ (ag) in the High Court, and the CoA (majority) have done; and learned Counsel Mendez is inviting the CCJ to do.

Third, Mendez’s emphasis on sovereignty is misplaced. The emphasis ought to be on the issue of referendum as the essential legal issue raised by the Applicant/Respondent Richardson’s pleadings in the High Court. And no amount of procrustean interpretation by Mendez in endeavouring to shift the CCJs gaze to Article 9 (as Lowe puts it) can distort the constitutional reality that Article 9 does not, and was not intended to, deal with such matters as “Qualifications for Elections” (Article 90), under which provision and rubric presidential candidature/candidacy squarely falls; and which as I have shown, does not require a referendum for its amendment.

I digress here to mention that I have abandoned, but has not lost curiosity in the jurisdictional issue as to whether the High Court (Chang, CJ (ag)) had, and has, jurisdiction in this matter. Did Chang, CJ(ag) and the Court of Appeal (sitting in its appellate jurisdiction and not in its peculiar excusive original jurisdiction) assume jurisdiction per incuriam Article 177 (4). For myself, a ruling by the CCJ on this most preliminary issue is not academic at all; and is patently most desirable.

I end with this: it is one thing for Cedric Richardson, and now seemingly Sherwood Lowe, to desire, unwittingly or otherwise, that Jagdeo be the PPP/C presidential candidate for the 2020 elections. It is quite another thing as to whether on their true construction Articles 1,9,90 and 164 (2)(a) and 164 (2)(b) cumulatively, permits a third-term candidature. No “flip-flop” (in Lowe’s pathetic aphorism) argumentation by Mendez will prevail. The law and the facts are decisively on the attorney general’s side. The attorney general will prevail by force of sheer soundness of his submissions. The introduction of term-limits into Guyana’s legal system by an alteration of Article 90 by Act 17/2000, is as constitutional as the constitution itself. The broad question of constitutional logic I posed in my introductory paragraph, I answer emphatically – No.
Regards
Maxwell E. Edwards