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Presidential term limit unconstitutional, amendment flouts the will of the people, High Court rules

by Denis Chabrol and Zena Henry

The High Court on Thursday ruled that having a presidential term limit is unconstitutional, paving the way for Bharrat Jagdeo to again contest future elections if there is a referendum or successful appeal. 

“The court therefire holds that Act No. 17 of 2001, in so far as it seeks to trench on an dilute the pre-existing democratic rights of the electorate to elect as President a person of their own choice, neeeded a referendum and is invalid  and without legal effect for reason of non-compliance with Article 164 (2) (a) and/or repugnancy with Article 1 (democratic society) and Article 9 (sovereignty belongs to the people) both of which Articles require a referendum for any alteration,” said Chief Justice Ian Chang in his ruling.

He 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.

Lawyers for the plaintiff 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.

Chief Justice Ian Chang 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.

The CJ 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. 

Chang said in his response to the question that, “the purported alteration by Act No. 17 of 2001 purports to curtail the people’s electoral democratic choices and to offend the declaration in Article 1 that Guyana is a democratic state in which the sovereignty resides with the people.” He continued that, “this is precisely why, for the purpose of any alteration of Articles 1 and 9, the voice of 2/3 of the elected members of the National Assembly is not the voice of the people.”

He said the court sees Act No. 17 of 2001 seeks to “trench on and dilute the pre-existing democratic rights of the electorate to elect as President a person of the own choice…” 

That alteration, he said, needed a referendum since it was of non –compliance with Article 164 (2) (a), repugnant with Article 1 (democratic society) and Article 9 (sovereignty belongs to the people), “both of which Articles require a referendum (vote of the people) for any alteration.

The questions posed by Richardson came just before the 2015 elections and pulled in the former President Bharrat Jagdeo as debate surfaced over him running for a third term after two terms as the country’s President. 

Jagdeo had stated repeatedly the he had no interest in being president or running for any public office again. His political party had stated during the recently concluded election period that Jagdeo could change his mind on running for president or public office.

The country saw him taking the lead role in the PPP’s election campaign and now he is the Opposition Leader for the defeated 23-year ruling party.

To challenge the current rules on a presidential third term an appeal of the matter of a referendum has to be called.