Lawyers representing the Guyana government in a Caribbean Court of Justice (CCJ) appeal case on presidential term limits on Monday sought to convince judges that they should overturn rulings by Guyanese courts that that amendment in 2001 could not have been done by Parliament but by a referendum.
Attorney General, Basil Williams was asked by CCJ President, Justice Denis Byron to meet with lawyers for Cedric Richardson- the man who is challenging the constitutionality of presidential term limits- to compile documents about the genesis of the amendment dating back to 1997 general elections political unrest, the role of a Caribbean Community (Caricom) mediation team and the signing of the peace pact, the Herdmanston Accord, that had included constitutional reform.
Guyana’s Solicitor General, Kim Kyte said, while there is no limit in Guyana’s Constitution to bringing constitutional reliefs, other courts in the Caribbean and the CCJ itself could not wait even as little as five years and in this case against the constitutionality of term limits. She said it means that in essence the applicant would have accepted term limits reluctantly all along without no protest. “This court has an inherent jurisdiction to protect itself from the abuse of process…The consequence is that it can be seen as an acquiescence to the validity of the Act,” Kyte said.
Senior Counsel, Douglas Mendes, who is representing Richardson, countered that it could not be an abuse of the court to find constitutional infringements even if several years have passed. He said it was important to fight the case on its merits and delay could not be raised as a defence. “The delay cannot effect or cannot constitutionalise an unconstitutional statute,” Mendes said. He said the Court would be acting unconstitutional if it sent away Richardson who was seeking a remedy as a public service.
Mendes said delay cannot constitutionalise a void act, and it should not be used as a basis to throw out the case because it would be unfair to use it to protect unconstitutional law. “That is wrong, it is wrong and unfair and it is contrary to the rule of law,” he said in reaction to the decision by the Attorney General, Basil Williams to raise that as as an issue now instead of in Guyana’s High Court and Court of Appeal.
The Solictor General urged the CCJ judges to consider the negative impact of upholding the Guyana Court of Appeal decision on the establishment of the various independent commissions on ethnic relations, women and gender, indigenous people’s and human rights. “It will whittle away the various constitutional commissions,” Kyte said.
Attorney-at-Law Ralph Thorne told the panel of CCJ judges that comparisons should be made with “all civilised democratic jurisdictions” like the United States and, Trinidad and Tobago that are moving towards term limits unlike China. “It is essentially undemocratic and no one in the submissions by the other side, no one has said that limitless terms of office is undemocratic,” he said. He added that term limits were introduced in Guyana to defend the integrity of the system and give opportunity to many instead of one. “There is in this part of the world a revulsion of experiences of persons having indefinite stays in office. That is what Caribbean people are revulsed by when politicians who stay in office… let us stay indefinitely. Constitutions and the people try to safeguard the system so that one person does not occupy the office indefinitely,” he said.
Thorne added that the right to participate is different from the right to choose by Richardson and other citizens.
After one of the judges cautioned Thorne against trying to convince the court with his own values, the Barbadian Attorney-at-Law who was hired by the Guyana government he concluded that “what the Guyana Court of Appeal did was to make political judgments with constitutional consequences and it is the constitutional consequence that is indeed undemocratic.” He argued that the Guyana Court of Appeal failed to define indivisibility, secular, transition from capitalism to socialism but instead deals with sovereignty which, he added, was not located rather than defined. Thorne noted that “sovereignty” was not defined, and the Court should be mindful of defining it in a way that it has egregious consequences for Parliament.
Following up on one of the judges remarking that persons still have to vote in an election, Thorne noted that the Guyana Court of Appeal appeared to embrace the system of proportional representation in which people do not vote for representatives but a slate of persons managed by the party. “They don’t say that that is undemocratic but they sense that it could be democratic when you give paramountcy to the party but that is a political view but no one has gone to the Guyanese court to suggest that party parmountcy, as a political concept, is undemocratic but when a government tries to give opportunities to presidential office to as many persons as possible, they somehow find it possible to submit that that is undemocratic,” he said.
Barbadian Queen’s Counsel, Hal Gollop said Guyana’s constitution did not clearly define sovereignty and the Court should limit itself to what is spelt out in the Supreme Law. “In the absence of clearly defined terms in the constitution,w e are going into the realm of politics and respectfully, a court should not trespass on that organ of the state to whom the right to legislate is given in the constitution. In the absence of clearly defined concepts, the Court should restrict itself to what the constitution says is allowable,”
Legal arguments were made by lawyers from both sides on whether Article 90 of Guyana’s Constitution by way of Act 17 of 2001 infringed on Articles 1 and 9 of the said constitution. Attorney General Williams said Act 17 of 2000 was validly passed. He said the Basic Structure Doctrine was not applicable to Guyana. “Those provisions were passed unanimously. The act was assented to by then President Jagdeo who is the object of this appeal in terms of the only person reelected twice,” Williams told the Court.