The CCJ Ruling on Presidential Term Limits

On 26 June 2018, the Caribbean Court of Justice (CCJ) issued a media release under the caption ‘CCJ Rules Two Terms only for Presidents of Guyana’. The release relates to the case of the Attorney General (AG) of Guyana v Cedric Richardson. It stated that ‘an amendment, that barred Presidents of the Republic of Guyana from serving more than two terms in office, was a valid amendment to the Constitution’.

Today’s article discusses the CCJ ruling by giving a background to the case, the legal issues involved and the decision of the court, followed by some concluding remarks. It draws heavily on the case summary made available, compliments of the Stabroek News.

In 2000, following extensive national consultations, certain sections of the Constitution were amended, including amendments relating to the qualification requirements for a President. In accordance with the amended Article 90 (1), for a person to be elected President: (a) he/she must be a citizen of Guyana and is a Guyanese by birth or parentage; (b) he/she must be residing in Guyana on the date of nomination for election and was continuously residing therein for a period of seven years immediately before that date; and (c) he/she is otherwise qualified to be elected as a member of the National Assembly. By Article 90(2), a person elected as President after 2000 is eligible for re-election only once.

Mr. Richardson (the respondent) had challenged the amendment to Article 90 (2) on the grounds that: (1) it diluted his right to choose whomever he wanted to be President, as implied by Articles 1 and 9 of the Constitution; (2) the amendment had to be supported by a majority vote in a referendum; and (3) no referendum was held prior to the amendment and therefore the amendment was unconstitutional. Article 1 refers to Guyana being a democratic sovereign state while Article 9 states that ‘sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by the Constitution’. (Emphasis mine.)

The matter was first heard in the High Court of Guyana which ruled in favour of the respondent. Upon appeal by the AG of Guyana, the Court of Appeal, by majority decision of two to one, upheld the ruling of the High Court. Both courts held the view that ‘an essential feature of a sovereign democratic state was the freedom enjoyed by its people to choose whom they wish to represent them’, and that the amendment to Article 90(2) ‘diluted the right of the people to elect a President of their choice inherent in Articles 1 and 9’. They relied on the US Supreme Court decisions in Powell v McCormac 395 U.S 486 and US Term Limits Inc v Thornton 514 U.S 779115 S. Ct (1995), and the Privy Council decision of State of Mauritius v Khoyratty (2007) 1 AC 80 in arriving at their ruling.

The dissenting opinion was rendered by then acting Chief Justice Cummings-Edwards. She argued 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 further argued that the respondent ‘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 has misinterpreted the provisions of the Constitution’.

The AG of Guyana, relying heavily on the dissenting opinion, appealed the ruling to the CCJ. He also submitted that the court was not entitled to assess whether the amendment to Article 90 was inconsistent with Articles 1 and 9 since the amendment did not purport to amend those articles.

The Constitution contains 232 articles. As provided for by Article 164, eleven of these, namely, Articles 1, 2, 8, 9, 18, 51, 66, 89, 99, 111 and 164, can only be altered by way of a referendum. Alterations in respect of some 170 Articles, inclusive of Article 90, are permitted if they are approved by a majority of two-thirds of all elected members of the National Assembly. In such a circumstance, it shall not be necessary for a referendum to be held. The remaining Articles can be amended with the approval of a majority of all elected members of the Assembly.

The CCJ considered that there were two issues to be addressed: (1) Could Articles 1 and 9 be altered by implication? and (2) If so, did the additional disqualifications change or dilute the right of the electorate in the sovereign democratic state of Guyana as prescribed by those Articles?