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High Court ruling on presidential term limit may be appealed; can scrap Rights, Procurement Commissions

A High Court ruling Thursday that an amendment to Guyana’s Constitution that block presidents from contesting elections for more than two terms could also mean that several rights commissions and the procurement commission are also unconstitutional, according to legal sources.

Attorney General Basil Williams declined to comment on the decision because he was yet to read it.

Another senior legal mind in the David Granger-led administration has already signaled that government would appeal the decision by High Court Judge as far as the Caribbean Court of Justice (CCJ)- Guyana’s final appeal court.

The High Court ruled that an amendment to facilitate a two-term limit on being elected President was unconstitutional because that section of the 1980 Constitution could not have been amended by two-thirds of the 65 members of the National Assembly but only by a referendum.

According to the experienced lawyer, the ruling by Chief Justice Ian Chang means that the Ethnic Relations Commission, Indigenous People’s Commission, Women and Gender Equality Commission, Commission for the Rights of the Child, and the Commission for Human Rights, as well as the Procurement Commission would now be rendered unconstitutional because they came into being in 2001 by virtue of an amendment almost identical to that which limits a President, who has been elected twice in succession, from seeking election a third or more terms.

While the High Court ruling does not mention the fate of those commissions, it states that substantial amendments are unconstitutional. “An alteration of the 1980 Constitution may be way of repeal (with or without re-enactment thereof or the making of a different provision in lieu of thereof), modification or suspension of any of its original provisions (Article 164(3) (b).

But there can be no substantive addition to its provisions in the sense that no new subject matter can be introduced under the guise of alteration. Simply put, there can be no amendment by the addition of any new subject matter to the original provisions even though there can be alterations of the original provisions by way of repeal, modification or suspension,” states Chang in his ruling.

The Chief Justice reasoned that as a document, which is “constitutively complete and holistic,” the 1980 Constitution cannot be amended by adding provisions since “there can no addition to a complete or holistic document.” He explained that any addition would mean the creation of a new Constitution, but the document.

Then Attorney General, Anil Nandlall had agreed that if private citizen Cedric Richardson, in whose name the constitutionality of the term limit wad challenged, was successful, the rights commission would have been jeopardized. “There are many provisions which were passed under the same mechanism which would be affected  with the same flaw that Richardson contends the term limits provision is afflicted with,” Nandlall had told Demerara Waves Online News.

Veteran lawyer, Nigel Hughes had also said in February 2015 that the case of Richardson vs the Attorney General and then Speaker of the National Assembly Raphael Trotman would have impacted adversely on several key constitutional reforms.

“The effect of a favourable pronouncement in the Richardson proceedings will also adversely impact upon all the changes that were made to the constitution which means that primary amongst them, off course, would be the Public Procurement Commission which would be reversed. We would not have a Human Rights Commission and all the other positive developments that came out of those very laborious consultations that took place,” Hughes had said.

Representing Richardson were Attorneys-at-Law Shawn Allicock and Emily Dodson whle Attorney-at-Law Roysdale Forde represented the Speaker of the National Assembly.