Caribbean Court of Justice upholds presidential term limits

Last Updated on Tuesday, 26 June 2018, 19:59 by Denis Chabrol

The Caribbean Court of Justice (CCJ) on Tuesday ruled that two-term presidential term limits  in Guyana must remain intact in keeping with a 2001 constitutional amendment, overturning decisions by the High Court and the Court of Appeal.

Delivering the judgement, outgoing CCJ President Justice Denis Byron said at the end a more than 30 minute summary that “the appeal is allowed. The orders of the Courts below are set aside. Section 2 of the Constitution Amendment Number 4 Act of 2000, also referred to as Act Number 17 of 2000 in the Court of Appeal and Act Number 17 2001 in the High Court, is a a constitutional amendment to Article 19 of the Constitution of the Cooperative Republic of Guyana, having been validly enacted,” he said.

The applicant, Cedric Richardson, had said that his right to choose whomsoever he wants to be president diluted and automatically disqualified  Bharrat Jagdeo who had previously served two terms as President.

At the core of Richardson’s argument was that Guyana’s Constitution could not have been amended in 2001 by Parliament to provide for presidential term limits. He had contended that the relevant Articles could have been amended only by a referendum, a position that had been upheld by then Chief Justice, Ian Chang. He had  ruled that the amendment of Article 90 of Guyana’s Constitution by way of Act 17 of 2001 infringed on Articles 1 and 9 of the said constitution.

Chang’s ruling was also upheld by then Chancellor of the Judiciary, Carl Singh and then Appellate Court Judge, B.S. Roy, with the dissenting judge  having been then acting Chancellor, Yonette Cummings-Edwards.

It is believed in some circles that the little or unknown Richardson is Jagdeo’s surrogate whose name had risen somewhat prominently as the ‘face’ of the challenge because the former Guyanese leader who was elected in 2001 and 2006 wants to contest the 2020 polls. Ahead of Tuesday’s ruling, Jagdeo said despite the outcome of the ruling he would remain General Secretary of the People’s Progressive Party and would be part of the next government should his party win the next general elections.

For its part, the CCJ took a similar position that the amendment had emerged out of a broad national consensus. “The CCJ felt that it was clear that the amendment did not emerge from the desire of any political party to  manipulate the requirements to run for the office of President. The Constitution was amended after extensive national consultation and therefore represented a sincere attempt to enhance democracy in Guyana,” the court said.

The CCJ upturned decisions by Guyana’s High Court and Court of Appeal, in the case of Cedric Richardson v the Attorney General, and ruled that the country’s constitution was properly amended to provide for term limits.

Richardson, who some believed was shadowing for Jagdeo- a two-term president- because he wanted to run again in the 2020 general elections, had argued that that section of the Constitution could only have been amended by a referendum and not by Parliament.

In the case of the Attorney General of Guyana v Cedric Richardson, the Caribbean Court of Justice (CCJ) ruled 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.

The amendment, which was made to the Constitution of Guyana in 2000, also added the further qualifications that a candidate for President must be a Guyanese by birth or parentage, residing in Guyana on the date of nomination for election, and continuously resident in the country for a period of seven years before nomination day.

The High Court, and a majority of the Court of Appeal, agreed with Mr. Richardson. They said that an essential feature of a sovereign democratic state was the freedom enjoyed by its people to choose whom they wish to represent them. The amendment was therefore unconstitutional because it “diluted the opportunity of the people to elect a President of their choice.”

The Attorney General of Guyana appealed to the CCJ challenging the majority ruling in the Court of Appeal. The main issue in the appeal was whether the additional qualifications set out in the amendment diluted the rights of the electorate or undermined the sovereign democratic nature of the state of Guyana as prescribed by Articles 1 and 9.
All seven judges of the CCJ heard the appeal. The majority decision was delivered by separate judgments from the

Rt. Hon. Sir Dennis Byron, the Court’s President, the Hon. Mr. Justice Adrian Saunders and the Hon. Mr. Justice Jacob Wit. The Hon. Mr. Justice Winston Anderson offered a dissenting judgment. The majority’s view was that Articles 1 and 9 did not confer on citizens an unlimited right to choose the head of state. Democratic governance allowed for reasonable qualifications for eligibility to be a member of the National Assembly and hence to be President.

This was supported by objective, international standards of what a democratic state entails. The CCJ also stated that new qualifications can be introduced by valid constitutional amendments and that the National Assembly had the power to amend the Constitution by a vote of at least two-thirds of all members of the Assembly, without holding a referendum.

The Court outlined guiding principles for assessing when new amendments to the Constitution did not require the holding of a referendum. Ultimately, the test was whether any such new amendments were “reasonably justifiable in a democratic society”. To determine this, any court called upon to assess such a matter should “look to the history, substance and practical consequences of the amendment, to the reasons advanced for it and to the interests it serves”.

The Hon. Mr. Justice Winston Anderson, in his dissent, agreed with the Court of Appeal of Guyana that the amendment was unconstitutional because it resulted in the exclusion of probably thousands of otherwise eligible Guyanese citizens from being elected as President, without seeking the approval of the people by referendum. He considered that this was an unacceptable constraint on the sovereignty of the people of Guyana to choose their President as provided for in Articles 1 and 9.

During the March 12, 2018 hearing by the Trinidad-based final appellate court, CCJ President Denis Byron had asked Attorney General, Basil Williams and Richardson’s lawyer s to compile and submit documents to the Court about the origin of the presidential term limit amendment that dates back to political unrest in 1997, the role of a Caribbean Community (CARICOM) mediation team and the signing of a peace pact between the People’s Progressive Party Civic and the then opposition People’s National Congress in 1998 named the Herdmanston Accord, that had provided for constitutional reform after broad-based national consultations.