Term-limit amendments didn’t require referendum

- AG argues

Attorney-General Basil Williams SC, in his written submissions in the appeal of the ruling that the presidential term-limit is unconstitutional, has argued that the amendments to Article 90 of the Constitution that established the two-term limit did not necessitate a referendum.

Acting Chancellor Carl Singh is currently hearing the appeal, which challenges a ruling by then Chief Justice (ag) Ian Chang that the presidential term-limit is unconstitutional without the approval of the people through a referendum.

Chang’s ruling is based on a constitutional motion brought by private citizen Cedrick Richardson, who challenged the restriction created by amendments to Article 90 that were enacted in 2001 after the bipartisan Constitution reform process.

The Attorney-General and the then Speaker of the National Assembly Raphael Trotman were named the defendants in that case. Following Justice Chang’s ruling, both defendants filed appeals.

Following amendments, Article 90 of the Constitution states at Clause 2(a) that a person elected as president after the year 2000 “is eligible for re-election only once” and at Clause (3) that 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.”

Richardson claimed that Act No 17 of 2001, which was passed by a two-thirds majority of all elected members of the National Assembly to enable the term-limits, “unconstitutionally curtails and restricts” his sovereign and democratic rights and freedom as a qualified elector “to elect the person of former president Bharrat Jagdeo” as executive president.

Jagdeo, a two-term president, is current opposition leader.

According to Justice Chang’s ruling, by virtue of the fact that the alterations diluted and further restricted democratic sovereignty, the holding of a referendum was required. He agreed that the changes “curtail people’s democratic choices” and offend declarations in Articles 1 and 9 that Guyana is a “democratic state” in which “sovereignty resides in the people.”

In his submission, prepared by attorney Esther Sam, Williams contends that it is the political parties and not the electorate who choose the presidential candidate and, therefore, the Richardson has no democratic right to choose who the presidential candidate will be.

The submission, dated February 2, was released to the media on Wednesday last.

Williams further contends that the alteration to Article 90 of the Constitution has not altered Articles 1 and 9 of the Constitution as alleged and therefore did not require a referendum vote.

Williams also points out that at all times Richardson based his application on Act No 17 of 2001 but there is no such act in place and he argued that this is a “fatal flaw in the Originating Summons and should have resulted in its dismissal at first instance.”

He also argues that it is clear that Article 164(2) (b) permits alterations to Article 90 once it is done in line with the prescribed procedure. This procedure, it was pointed out, requires that it be passed in the National Assembly 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),” he says.

Williams contends that the electorate has no democratic right to choose who will become the presidential candidate; instead, their right is to vote for the party list of their choice.

He further adds that the amendments did not alter or change any of the provisions in Article (164) (2) (a) 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.”

Addressing whether Richardson had any standing to bring the application, Williams said that while it was based on the ground that his right to choose the presidential candidate of his choice was being affected by the constitutional alteration to Article 90, the law states clearly that an electorate does not have the right to choose or vote for a presidential candidate.

Williams also considered whether an originating summons was the appropriate process for instituting the proceedings before the court. He argued that Richardson had not established the legal requirements to bring the 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.”

Meanwhile, attorney Roysdale Forde, in a submission on behalf of Trotman, asked that the appeal be allowed as the amendments to Article 90 did not “expressly, or by implication or infection alter the provisions of Articles 1 and 9 of the Constitution.”

In his written submissions, dated January 20, he highlighted dozens of issues arising from Justice Chang’s judgement.

It was noted that the appeal before the court raises issues of construction of the Constitution for the court’s determination; that is, whether in substance and effect the amendments to Article 90 altered the provisions in Articles 1 and 9 other than in accordance with Article 164 (2) (a).

Like Williams, Trotman contends that the amendments did not alter by implication or affect Articles 1 and 9.

It was also argued that the amendments merely added disqualifications in respect of an individual citizen’s competence to be elected as president. “The constitutional and statutory context in which the citizen and or the Respondent exercises his right to elect a person of his own choosing as president was not considered by the Chief Justice at all in his judgment,” the submission states.

It adds that the right of Richardson and a citizen to choose or elect a presidential candidate in every elections prior to Act No 17 is the same and exact right which existed after the enactment of that Act.

According to the submission, the addition of the term limit in Article 90 did not result in the creation of a “new thing or destroy the identity of the thing affected, that is another type of state, nor was it a change in or modification or variation in the state of Guyana or the sovereignty of the people.”

A ruling on the appeal is expected tomorrow.