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Guyana’s Court of Appeal upholds unconstitutionality of presidential term limits in split decision

Attorney General and Minister of Legal Affairs, Basil Williams entering the Court of Appeal compound for the ruling on presidential term limits.

Guyana’s Court of Appeal on Wednesday, by a 2 to 1 majority, ruled that presidential term limits is unconstitutional.

Attorney General  Basil Williams says the State will appeal the decision to the Cariibean Court of Justice within 30 days.

Justice B.S. Roy and Chancellor of the Judiciary, Carl Singh turned down an appeal by Attorney General Basil Williams and the Speaker of the National Assembly.

Chief Justice Yonette Cummings-Edwards differed and allowed the appeal of a High Court decision three years ago.

In her dissenting decision, she said the amendment to limit presidential terms to two is “not unconstitutional.” “The people of Guyana in whom sovereignty lies exercise their sovereignty through representatives of Parliament and Local Democratic organs,” she said. She said sovereignty of the people is exercised by their representatives and so the amendment did not alter, dilute, affect or amend Articles 1 and 9 of Guyana’s constitution.

Cummings-Edwards said the people themselves gave that power to Parliament to change the constitution within the various levels of entrenchment, and affect people’s right to vote or choose who should be their president in keeping with certain restrictions.

Justice of Appeal Cummings-Edwards added that the appellant has failed to prove the amendment that provides for term limits was unconstitutional.

The amendment also provides for only Guyana-born persons to be eligible to become presidential candidates. United States-born Janet Rosenberg- Jagan had won the 1997 general elections.

Chancellor of the Judiciary, Carl Singh said any law that would have the effect of suppressing the right to freely elect someone of their choice would be unconstiutional. “The people are entitled, in keeping with democratic principles to freely elect their representatives,” Singh said. He further reasoned that further disqualification will further diminish the sovereign and democratic entitlements of Guyanese. He noted that “deeply entrenched” Articles 1 and 9 of Guyana’s constiution could only be changed by referendum to achieve legal validity and efficacy.

The Chancellor deemed as an “incredible” request by Attorney General Basil Williams to find that the proceedings were void from the inception because there was a reference to the non-existent Article 17 of 2001 instead of Article 17 of 2000. “It was an error and that’s what it is,” he said in relying on a Caribbean Court of Justice when it came to dealing with errors. He said no evidence had been led to show that anyone had been prejudiced or disadvantaged.

The appeal had been filed against a ruling by then Chief Justice, Ian Chang in July 2015 that the constitutional amendment, Act No. 17 of 2001, which limits presidencies to two terms is invalid because such a decision requires a referendum.

Chang had said Article No.17 of 2001 is without legal effect because it does not comply with other articles of the constitution dealing with repugnancy, democratic society and sovereignty belonging to the people which require a referendum for any alteration.

Lawyer for the applicant, Shawn Allicock arrives at the Court of Appeal.

Chang had reasoned that reasoned that  Article 1 and 9 underpin the republican committment to the fundamental concept of popular sovereignty or imperium populi thereby safeguarding against elective despotism by the elected representatives of the people.

“Thus, while the constitution provides for representative democracy, such representative democracy cannot entrench on popular sovereignty from which it derives and and which is entrenched by the requirement of the referendum,” Chang had said. Chang had determined that the two-term limit of Presidents indeed dilutes the rights of citizens to elect the person they wish to govern their country regardless of the number of times they wish that person to be Head of State.

Lawyers for the plaintiff, Cedric Richardson, had contended that the constitution could have been amended only by a referendum rather than by at least two-thirds of the members of the National Assembly.

In his affidavit, Plaintiff Cedric Richardson had argued that the purported alteration of the Constitution by Act 17 of 2001 would curtail or delimit the electorate’s choice of Presidential candidate by rendering ineligible for the candidature any person who has been re-elected once as President eg. Former President Bharrat Jagdeo.

The then Chief Justice had responded in the affirmative to questions posed to the court by qualified elector,Richardson who in an Originating Summon of December 3, 2014, cited several grounds for his contention. Of the four questions, Richardson asked was  whether the Act of 2001 that alters that of 1980 Constitution by way of a 2/3 vote of the National Assembly, restricts and curtails the democratic rights and freedom of the electorate enjoyed under the 1980 Constitution.

  • Stakeholder2

    We do have a final court of appeal so it is right for the Attorney General to carry this case to the Caribbean Court of Justice. I hope however he does not base his arguments on grammatical errors.

    • rs dasai

      Stake.
      The AG will do a good job. Have no fear of the CJ

  • Emile_Mervin

    It is two judges of Indian extraction and one judge of Chinese extraction versus one judge of African extraction. Did we really expect a commonsense outcome? Jagdeo’s Boys won the 1st and 2nd rounds. On to round 3 in the CCJ.

    • Col123

      Agree. With three brothas as judges, we would have had this decision, Jaggie and the AG in a bag….. hopefully, this soon come.

    • Rohit Parmamand

      Emile – I hope the AG will do the right thing and defend the decision as right and proper until the CCJ says otherwise. In the mean time i suggest that you temper your racial rantings and most importantly keep them to yourself.
      The rule of law is paramount in any democracy. You cant say its a democracy when PNC wins at the polls and its Stooges when they lose in the courts.
      You yourself with your many missives is so fed up with the president that you called him a stranger in poetry. While i appreciate your attempt at displaying knowledge on everything under and in the sun. You have to temper your racial proclivities and be big hearted. That is what is needed to change Guyana.

      • Col123

        AG… “defending the decision as right and proper until “…the chap does not even know what is ” fit an proper”.. look dude…go and feed them parking meters….

      • Emile_Mervin

        You and a billion like you cannot stop me from calling this split decision a race-based one. Read my response about. This is about race as much as every single election where Indians and Blacks vote along racial lines. When are you folks gonna grow up and stop hiding behind masks of hypocritical political correctness? Race has dominated and destroyed Guyana.

    • Kassem_B

      ‘It is two judges of Indian extraction and one judge of Chinese extraction versus one judge of African extraction. Did we really expect a commonsense outcome? Jagdeo’s Boys won the 1st and 2nd rounds. On to round 3 in the CCJ.’
      So
      What is your position if the CCJ select a majority of non-indian extraction Judges to hear the Appeal?

    • shovid

      You are free to vote them back in office, however you and your Nincompoops only have 3 plus years left!!
      Soe..Shout..Scream..Enjoy while it last.

  • Col123

    Too much extraneous hullabaloo and speculation over this decision. Granger remains quiet not taking responsibility for anything, and is just laughing at the populace as he licks his lips with power, for the next twenty five years… Good luck Mr President for life.

  • Referendum without Rats

    Who were the legal advisers to the then PPP government when this law was made? What was the intention of this law? Dr. Jagan always preached term limits. Is this not a wet- fish slap in the face of the intention of Dr. Jagan to limit a president to two terms only?
    The PPP, that great party of the people, must co-operate with the other parties to have all their sup porters vote unanimously to have term limits. We must have this referendum. Dr. Jagan started this with Great Expectations. I am certain that Dr. Jagdeo will support this.

    • shovid

      Caricom.

  • Lancelot Brassington

    Carl Singh seemed hell bent on hearing this case before riding off into the sunset. He was never confirmed as chancellor during the tenure of the PPP yet he was still driven by something to hear this case before departing. Something smells foul but as a legal man he would know how to cover the trail and safeguard himself.
    Having said that, it must be noted that the PPP seems to be pinning all of its hopes on Jagdeo. Do Frank Anthony, Priya Manickchand, Irfaan Alli, Charles Ramson (jr), Vidhya Persaud and others know how stupid and ineffectual this makes them look.
    I will be prepared to accept the ruling of the Caribbean Court of Justice but the Attorney General will have to assign the right lawyers to prepare this submission and then supervise them closely. No harm too in getting lawyers outside of the government framework to vet the submission for loopholes and pitfalls that they would have pounced on if they were judges of the CCJ, and then making suitable adjustments. It is essential that a thorough job of preparation be done.
    Finally the shameless, servile, quisling Cedric Richardson should be ostracized for selling his soul. Who paid his lawyers, by the way? Was Richardson given the money to pay them or did the intellectual authors pay them directly? Just wondering.

    • rs dasai

      Lan C
      You are again fishing without hook and bait. You know that The Jagster will not run.

  • Emile_Mervin

    Cut the crap! They are Jagdeo’s stooges and I would tell them that to their faces. Check this out!
    The two-year limit idea was born while Cheddie Jagan was alive, and the rationale was to prevent anyone from occupying the presidency for too long lest the occupant becomes dictatorial. Burnham was the impetus!
    Cheddie and all the legal brains in the PPP also patterned the term limit concept after the U.S, which actually introduced its own two-term limit via the U.S Congress (legislative branch) and not via a referendum.
    And so the Members of Parliament, who were elected on a party list system and not directly or individually as representatives of specific constituencies, passed a unanimous vote for the amendment to a look for term limits.
    There were four elections since that 2000 amendment and voters voted knowing the term limit law was in effect and never petitioned for it to be reversed.
    It was greedy Jagdeo who believes it is his divine right to rule and ruin Guyana who engineered this outcome with great help from his stooges.

    • shovid

      Stop LYING!!..It was the Racists PNC who used Caricom to push thru term limits for socalled peace in the city!!
      You Easily and Conveniently forgot your masters mantra of Slo faya..Mo Faya.

  • Col123

    Vic ..thumbs up for your very sobering comment….Your first two sentences reflected what most see from the comments here, and elsewhere… the blind partisanship and racist loyalty to kith and kin, and those who are tempered with that chronic diseased way of racist thinking and writing, never mind their right to say it, and claiming it as revealing a mask of some political correctness….as they stray from the merits of the court ruling in this case,and speculate with false premises and fallacious arguments……I hate to say it, but that is the theme expected of most comments from Guyanese……

  • cuffy

    From CCJ to ICJ,regardless,Guyana needs new political blood,do away with these stalwarts….Duncan was trying but the establishment got rid of him, A revolution is needed.