We are such a messed-up nation that today, 50% of the country will be happy with a judgment made by the Court of Appeal and the other 50% will be sad.
Half of the population will be happy because they believe that yesterday’s majority ruling by the Court of Appeal favours Bharrat Jagdeo. The other half will be upset for precisely the same reason.
Yesterday’s ruling to the effect that term-limits are unconstitutional was more about the existence of popular sovereignty than it was about whether Bharrat Jagdeo will gain a third term.
The supporters of the APNU+AFC coalition should not be distraught, because the decision also means that President Granger can also be entitled to a third term. That is, of course, if the decision survives the appeal which is likely to be made to the Caribbean Court of Justice.
The significance of yesterday’s decision goes beyond who is entitled to a third term. It is about popular sovereignty which former acting Chief Justice Ian Chang had ruled cannot be diluted by an act of parliament, unsupported by a referendum.
Chang’s decision was a landmark one. The issue of term limits has arisen in many countries in Latin America. In Nicaragua, the country’s highest Court held that term limits were discriminatory and violated the right of the President. In Honduras, it was held that the rules against re-election were unconstitutional.
Justice Chang took a more progressive approach. He held that sovereignty resided with the people by virtue of provisions in our constitution, and essentially argued that popular sovereignty could not be undermined by an act of parliament. He found that the method by which the constitutional prohibition against term limits was enacted was wrong; a referendum should have been held.
The full ruling of Chang makes a cogent case for the exercise of popular sovereignty which can be sourced to the people. The fact that the people elect representatives to exercise sovereignty on their behalf does not give the people the right to dilute popular sovereignty. As such, Justice Chang held that the method of enactment of term limits was void of the constitution.
Justice Chang’s landmark decision was upheld by a majority decision of the Court of Appeal yesterday. But the Court of Appeal ruling is likely to be appealed, because APNU is trembling at the possibility of having to face Bharrat Jagdeo in an election.
The issue at hand, however, should not be about Jagdeo. It should be, firstly, about the limits to the exercise of popular sovereignty by elected officials
Secondly, it should be about limitations which term limits place on the right of the people to decide who should rule them.
Thirdly, the matter concerns the right of any person to serve his country in the highest office.
Fourthly, it is about whether term limits are an obstruction to democratic rule.
These are the issues which should be concerning people, not whether it means that Jagdeo or Granger could have a third term in office.
These are all constitutional issues. In Guyana, the constitution is supreme. In the United Kingdom, there is no written constitution and it is the parliament which is supreme.
A referendum was recently held in Britain to determine whether that country should stay in the European Union. The votes said no. But a Guyanese woman challenged the withdrawal from the EU on the grounds that the parliament was supreme and that it required a vote of parliament for any pullout of the EU.
The lower court agreed with the Guyanese woman. The British government appealed and in a divided decision, the UK Supreme Court upheld the original decision of the lower court. Steps will now have to be taken by the British government to comply with the ruling of the Supreme Court.
This is how the rule of law operates. People should not get upset about yesterday’s ruling. Guyana’s Court of Appeal is not Guyana’s final court. The Caribbean Court of Justice is. It is left to be seen what position that court will take. Important constitutional issues are at stake. People should not get worked up. It will all be resolved in another few years.
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