A team of lawyers representing the Government of Guyana has presented arguments before the Caribbean Court of Justice, (CCJ) seeking to overturn the decision of the local courts in relation to the Presidential term limit.
The action, which was originally filed in 2014 by Cedric Richardson, a private citizen, saw a team of attorneys from the Chambers of Attorney General, (AG) making submissions before a panel of Judges at the CCJ yesterday.
Richardson had approached the High Court challenging the two-term restriction created by amendments to Article 90 of the Constitution. The amendments were enacted in 2001 after the bipartisan Constitution reform process.
He nonetheless argued that Act 17 of 2001, which was passed by a two-thirds majority of the National Assembly, unconstitutionally curtails and restricts his sovereign and democratic rights and freedom as a qualified elector to elect former President Bharrat Jagdeo as the Executive President of Guyana.
On July 9, 2015, the then acting Chief Justice Ian Chang had ruled that the presidential term-limit was unconstitutional without the approval of the people through a referendum. The amendments to the constitution had seen the insertion of two clauses to allow for re-election only once.
The Court of Appeal had subsequently ruled that an Act which amended Article 90 of the Constitution by introducing new criteria for eligibility to run for the office of President, indirectly breached Articles 1 and 9 of the Constitution which gives the electorate of Guyana the right to elect a President of their choice.
Appearing before the CCJ yesterday, the team representing the State of Guyana – Attorney General, Basil Williams SC, Solicitor General, Kim Kyte , Barbadian Queen’s Counsel Hal Gollop and Attorney Ralph Thorne – sought to convince the panel of judges that among other things, the amendment could have been made by Parliament and not only via referendum.
Elaborating on this point, Queens’ Counsel Gollop noted that the Court of Appeal, specifically former Chancellor (Ag) Carl Singh, adopted a faulty definition of the term sovereignty
Referencing Article 9 of the Constitution, Gollop noted that the law clearly states that “sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution.”
Gollop told the Court therefore that the constitution gives the people the right to have their representatives in Parliament exercise that sovereignty on their behalf.
He noted that the Appeal failed to show how that power was contravened or taken away from the people.
The QC asserted that that sovereignty was never taken away from citizens but rather transferred those who represent them.
In his submissions, Attorney General Williams noted that two essential issues that should be considered in the matter are sovereignty and democracy. He noted that the Act 17 of 2001 was passed following widespread consultation and a unanimous decision in Parliament.
In fact, he noted that the Act was assented to by the then President Bharrat Jagdeo, who is the subject in the matter.
Responding to inquiries from the Judges in relation to the background of the amendment, the AG told the Court that the Act was drafted following post-election trauma in 1999. He explained that there was agreement between the two political groups towards the de-escalation of conflict pursuant to deliberations and consultations undertaken by a CARICOM Mission.
Williams explained that the Herdmanston Accord (agreement) was birthed as a result of the consultations. He noted that the accord led the way for among other things constitutional reform, from which Act 17 of 2001 was formed.
Attorney General admitted however that no documents were filed in support of these claims.
CCJ President, Justice Dennis Byron, noted that it was regrettable that the AG did not see it fit to file the documents in support of his submission. “It is regrettable that all that information is coming from you now….Had you not considered it’s being useful to the Court.”
In response, Williams said that he will pull out all stops to get the document filed. The Judge therefore advised that the AG meet with lawyers of the respondent Richardson to compile documents about the genesis of the amendment.
Meanwhile Guyana’s Solicitor General, Kim Kyte made presentations on the issue of delays. She noted that while there is no limit in Guyana’s Constitution to bringing constitutional reliefs, other courts in the Caribbean and the CCJ itself could not wait even as little as five years and in this case, against the constitutionality of term limits.
“This court has an inherent jurisdiction to protect itself from the abuse of process. The consequence is that it can be seen as an acquiescence to the validity of the Act,” Kyte said. The Solicitor General urged the CCJ to consider, too, the negative impact of upholding the Guyana Court of Appeal decision on the establishment of the various independent commissions on ethnic relations, women and gender, indigenous peoples and human rights. “It will whittle away the various constitutional commissions,” she asserted.
In his representation of Richardson, Trinidadian Senior Counsel, Douglas Mendes, noted the importance of fighting the case on its merits and delay could not be raised as a defence. “The delay cannot effect or cannot constitutionalise an unconstitutional statute.”
Mendes said delay cannot constitutionalise a void act, and it should not be used as a basis to throw out the case, because it would be unfair to use it to protect unconstitutional law.
“That is wrong, it is wrong and unfair and it is contrary to the rule of law,” he said in reaction to the decision by the Attorney General Basil Williams to raise that as an issue now instead of in Guyana’s High Court and Court of Appeal.
At the Court of Appeal, Justice Carl Singh, Chancellor and Justice of Appeal B S Roy, ruled in favour of Richardson while the then acting Chief Justice Yonette Cummings-Edwards dissented.
But the AG, supported by Minister Raphael Trotman, filed the case with the CCJ citing a number of errors they believed were made by the local courts, including that the alteration of Article 90 of the Constitution of Guyana by Act No 17 of 2001, diluted and diminished the democratic sovereignty and the sovereignty of the people under Articles 1 and 9 of the Constitution of Guyana, respectively.
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