…says restriction was a valid amendment to the Constitution

By a 6-1 majority, the Caribbean Court of Justice (CCJ) on Tuesday struck down the High Court and Court of Appeal ruling in the presidential term limit here and declared that Section 2 of the Constitution (Amendment) (No 4) Act of 2000 was a constitutional amendment to Article 90 of the Constitution of Guyana.

Outgoing President of the CCJ, Sir Dennis Bryon and Justices: Adrian Saunders, Jacob Wit, David Hayton, Maureen Rajnauth-Lee and Denys Barrow all ruled that the two-term presidential limit here is constitutional and does not infringe on the rights of any citizen to so choose a president of his or her choice. Justice Winston Anderson was the dissenting voice.

“With all things considered, we are satisfied that the case is not made out to disturb the will of the people expressed through the Act, considering as we do that it did not dilute democracy in, nor undermine the sovereignty of the people of Guyana,” the CCJ held.

Just before the May 2015 General and Regional Elections, Georgetown resident, Cedric Richardson approached the High Court of Guyana requesting orders that sought to invalidate the amendments made to the constitution with respect to the presidential term limit. Richardson claimed that his right to choose whom he desired to be president, by virtue of Articles 1 and 9 of the Constitution of Guyana was diluted when Article 90 of the Constitution was altered to disqualify a person who had already served two terms as president.

Qualifications
The amendment to Article 90 of the Constitution outlined further qualifications that a candidate for President 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 argued that the alterations to Article 90 disqualified former President Bharrat Jagdeo who had previously served two terms as President. He argued too that the amendment had to be supported by a majority of voters via a referendum.

At the level of the High Court, Chief Justice (ag) Ian Chang at the time found favour of Richardson’s arguments prompting the state to appeal. At the level of the Court of Appeal, the said judgment was affirmed by virtue of a two-one majority. The dissenting voice, at the Court of Appeal was Chief Justice (ag) at the time, Yonette Cummings-Edwards. In her decision, she found that the Constitution bestowed upon Parliament the power to expand the categories of persons disqualified from running for President in Article 90 and that there was no need for a referendum in order for Parliament to do this.

She opined that Richardson had failed to displace the presumption of constitutionality of the amendments by establishing that when Parliament purported to amend Article 90 it was acting either in bad faith or had misinterpreted the provisions of the Constitution.
It is by way of the dissenting judgment of Justice-Cummings-Edwards that Guyana’s Attorney General relied in his application to the CCJ.

Two issues were put before the country’s final appellate court, whether Articles 1 and 9 could be altered by implication and if so, did the additional disqualifications change or dilute the rights of the electorate in the sovereign democratic state of Guyana as prescribed by those Articles?

The appeal was heard by the full bench of the CCJ of which there was one dissenting judgment. The majority decision was embodied in the separate judgments of Sir Dennis Byron, Justice Saunders and Justice Wit while Justice Anderson’s delivered a detailed dissent. In his judgment, Justice Byron noted that it is permissible to alter the Constitution of Guyana, which is the supreme law of the land adding that the method of altering it is regulated to ensure that it is more difficult to do so than pass ordinary legislation.

“The Constitution cannot be immutable; there must be sufficient flexibility for change to meet evolving needs of Guyanese citizens,” he said pointing to Article 164 of the Constitution which regulates the method of altering the constitution.

Article 164 (1) of the Constitution states 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 votes of a majority of all the elected members of the Assembly.”
He told the court that there are three levels of entrenchment of provisions in the local Constitution.

The shallowest level he said allows for the alteration of certain provisions by an absolute majority of the National Assembly. The intermediate level allows for the alteration of provisions including Article 90 with at least a two-thirds majority vote of all members of the National Assembly while the deepest level requires a referendum to alter provisions such as Articles 1 and 9.

Only 10 Articles and four Schedules are subject to the deepest level of entrenchment, making it applicable only in exceptional circumstances which go to the fundamentals of the State, he stated.

He posited that the constitution could not have made the articles which dealt with the qualifications to be elected as President subject to the Article 164 (2) (a) level of entrenchment. “By providing different levels of entrenchment for Articles 1 and 9 on the one hand and Article 90 on the other, Article 164 of the Constitution placed different values on them. The failure to give them the same level of entrenchment is an indication of the intentions of the framers of the constitution,” said Sir Byron.

He noted too that if the intention of the framers was to have the alterations to Article 90 enacted the same way as alterations to Articles 1 and 9 they would have given it the same level of entrenchment. “The inescapable conclusion is that the framers of the Constitution did not envisage that altering the qualifications to be President would necessarily impact on democracy or the sovereignty of the people in Guyana for which provision was made in Articles 1 and 9,” said the CCJ President.

Justice Byron noted too that the state challenges the power of the court to conclude that Articles 1 and 9 had been amended by implication because the court had a limited role and could not enquire into the propriety of the amending legislation nor place any limitation on the parliamentary power to amend Article 90. Attorney General Williams had made similar arguments.

Bryon made it clear that it is an accepted principle that courts should be generous in their interpretation of constitutions. “The court should not be overly literalistic and restrictive but should give effect to the meaning of the constitution,” he stated. He said it is the court’s role to determine whether the correct procedure was followed in the passage of the law, given the level of entrenchment of the provision that was altered. He said there are two mechanisms which diminish the risk of alteration by implication; the first being Article 164 itself and the second is the purpose for the proposed alteration.

“The alteration of the qualifications for the President by Article 90 does not imply that the specified procedure or mechanism for altering Articles 1 and 9 should apply, because the alteration of the qualifications does not alter the constitutional provisions relating to the democracy and sovereignty of the people.”

Limitation of electorate
On the issue of the alleged limitations on the electorate’s right to choose a president, Justice Byron considered arguments for Richardson put forward by Douglas Mendes, SC. Mendes submitted that a core feature of a sovereign democratic state is that the people should be free to choose who should represent them in a government without constraints.

“The reality in this appeal is that the respondent has not been able to show that the right to an unlimited choice of a head of state was enshrined or even existed anywhere…the premise that there is an unlimited right to choose the head of state implied in Articles 1 and 9 is not accurate. These articles do not depend on the qualifications of electors and persons who can be elected,” said the CCJ President.

He made it clear that the concept of qualifications for office was not open ended and would include matters of age, citizenship, residence and term limits. In fact, only these issues, excluding age, were addressed by the amendments in Guyana. The judge said had there been attempts to introduce unusual considerations to mask as qualifications then different principles for adjudication would arise.

Political unrest
Meanwhile, in addressing the evolution of democracy here, the CCJ President outlined the periods of political unrests here and pointed to Constitutional reform following the 1997 elections where there was a month of civil unrest. This led to the intervention of CARICOM and the signing of the Herdmanston Accord of 1998 between the Peoples National Congress and the People’s Progressive Party.

The government at the time had agreed to complete constitutional reform and the commission was established the following year and extensive consultations done. As such, he said the Constitution Amendment Act of 2000 was a comprehensive Act which altered 11 Articles of the Constitution addressing the qualifications and powers of the President.

The amendment of all of these provisions was regulated by Article 164(2) (b), the second level of entrenchment. The Act was passed with not just a two-thirds majority, but in fact a unanimous vote of all members of the Assembly. Section 2 of the Act altered Article 90 having regard to the Commission’s recommendations. “This amendment reflected compliance with a widespread community demand. It could be argued that it is not obvious that the referendum necessarily imposes a higher degree of difficulty than getting a two thirds majority of Parliament. The referendum only requires a simple majority in Parliament and a simple majority of those who vote,” said Byron.

Therefore, the court held that where the legislation was passed unanimously in a multi-party parliament, it must be concluded that there was national consensus. “The Respondent has not shown justification for frustrating that consensus. It is clear, moreover, the Act did not emerge from the desire of any political party to manipulate the candidacy for the Presidency according to its agenda,” the CCJ president stated noting the irony that the reform process was undertaken by the PPP during the presidency of Bharrat Jagdeo but it “is now a PNC government that wishes to uphold these constitutional amendments.”

Sovereignty of the people
Similarly, Justice Saunders said that the suggestion that sovereignty meant that the people must be able freely to choose whomsoever they wish to govern them, and that prior to the amendment that was the case, was unsupported in constitutional theory and practice. He posited that Richardson’s arguments “lacks merit”.

Justice Saunders said that the “Principles and Bases of the Political, Economic and Social System” laid out in Part 1 of the Constitution (of which Article 9 is a part), and their inclusion in the Guyana Constitution, were for the most part a constitutional feature borrowed from or at least similar to what is found in the Indian Constitution. “Mr Richardson has contrived to premise his case on the following progression.

Firstly, he extrapolates from Articles 1 and 9 an individual fundamental right similar to the enforceable Rights and Freedoms contained in Part 2 Title 1 of the Constitution; secondly, he takes it upon himself to define this “right” as his opportunity “freely” to elect a President of his choice; and thirdly, he seeks redress for what he asserts is a fetter that has been placed on this new found “right”. Each of these premises is wrong,” said Saunders whose judgment mirrored Justice Byron.

He said to interpret the constitution in such a manner defeats its structure and intent and moreover, contradicts the text of the instrument. Justice Saunders noted too that another flaw of Richardson’s argument lays in the submission that Articles 1 and 9 are breached whenever an additional disqualification is added. “It cannot be the case that any and every new qualification or disqualification the National Assembly imposes on candidacy for public office automatically abridges democracy.

Nor does the removal of an existing qualification inevitably expand democracy. It would be quite remarkable if democracy or sovereignty could be measured in such a manner. The status of Guyana as a sovereign and democratic state may be but is not necessarily implicated by an alteration of the qualifications established for election to the Presidency.”

Most states have limits
Describing the case as “remarkable” Justice Wit noted that the two-term presidential term limit in and of itself is not. “Most states with a presidential or semi presidential system have these limits,” he said.

Justice Wit focused his judgment on objective, international standards of what a democratic state entails. He considered the relevant international treaty provisions, jurisprudence of the Inter-American Court of Human Rights and a very persuasive report on presidential term limits by the European Commission for Democracy Through Law (the “Venice Commission”).

He concluded that limits on re-election also pursued the aim of preserving democracy and protected the human right to political participation. Term limits contributed to guaranteeing that periodic elections were “genuine” and to ensuring that representatives are freely chosen and accountable, and as such the introduction of term limits did therefore not dilute or water down the democratic status of Guyana.

Dissenting voice
Meanwhile, in his dissenting judgment, Justice Anderson said that the crucial issue for decision was whether Articles 1 and 9 guaranteed to the people of Guyana the right to freely choose their President. He said that these provisions were akin to human rights provisions and are therefore to be given a generous, liberal and purposeful construction. He pointed to Article 154A of the Constitution which confers upon the citizens of Guyana the human rights enshrined in the international treaties to which Guyana has acceded.

Article 25 of the International Covenant on Civil and Political Rights which affirms the right and opportunity of every citizen (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; and (b) to vote and be elected at genuine periodic elections guaranteeing the free expression of the will of the electors. Similar expressions are to be found in Article 20 of the American Declaration of the Rights and Duties of Man 194810 and Article 23 of the American Convention on Human Rights 1969.

Having regard to the aforementioned treaty provisions and other authorities Justice Anderson posited that the recognition in Articles 1 and 9 that sovereignty belongs to the people who exercise it through their representatives necessarily entails the corollary that the people are free to choose who their representatives will be, free that is, from any constraints not imposed by the people themselves. This was consistent with a generous and liberal interpretation of the Articles.

In the sovereign democratic state of Guyana in which sovereignty belongs to the people, the people have supreme power or authority to govern themselves. This implies the right to self-determination, or as the Preamble to the Constitution states, it affirms the sovereignty and independence of the people. These pre-existing rights may be enlarged but cannot be constricted by the executive, legislative or judicial organs of the state; organs which derive their legitimacy from the sovereignty of the people as expressed in their Constitution, he stated.

“It is to be emphasized that it is not for the executive, the legislature or the judiciary to decide the universe of candidates from which the people can choose their President. That would usurp sovereignty from the people and relocate it to subservient organs of the state. Any temptation presented to these organs of state to refashion the democratic sovereignty of the people in a way that whittles away that sovereignty, ought to be resisted.

It may well be true that certain modern notions are thought to be more conducive to democracy than older notions. And that may well be so. However, unless these notions have attained the status of jus cogens they cannot be determinative,” said the dissenting judge.

He opined that the amendment was unconstitutional because it disqualified five categories of persons from standing for the post of President who were not previously so disqualified without the approval of the people in a referendum in accordance with Article 164.

Justice Anderson noted that the question was not whether Guyana remained a democratic sovereign state; rather, it was whether the amendments diminished or watered down the rights vested in the people as recognized in Articles 1 and 9. He was convinced it did.

Appearances on behalf of the Attorney General of Guyana were made by Attorney General Basil Williams, S.C., Hal Gollop, Q.C., Ralph Thorne, Q.C., Solicitor-General, Kim Kyte-Thomas, Judy Stuart –Adonis and Utieka John while Douglas Mendes, S.C., Devesh Maharaj and Kandace Bharath for Richardson.