Georgetown, Guyana – (February 22, 2017) Attorney General and Minister of Legal Affairs, Mr. Basil Williams has committed to taking the Presidential term limit case to the Caribbean Court of Justice (CCJ), pointing out that the ruling by the outgoing Chancellor of the Judiciary, Justice Carl Singh, is deeply flawed.
The Court of Appeal, today, upheld the ruling of the former Chief Justice Ian Change, which had stated that the Constitutional amendment, Act No. 17 of 2001, which limits the number of times a person can be elected as President is unconstitutional. This has paved the way for a former President, even after having served two terms in office, to stand for elections on a list of representatives as the Presidential candidate for an unlimited number of terms. The Court of Appeal Judges, Justice Carl Singh and Justice B.S. Roy voted to uphold the ruling of the High Court, while acting Chief Justice Yonette Cummings-Edwards was the only dissenting voice.
Justice Singh in his ruling said that the decision to limit Presidential terms should have gone to the electorate by way of a referendum, and not be decided upon by the National Assembly. However, Justice Cummings-Edwards did not agree with Justice Chang’s ruling, and argued that such a referendum would mean that the electorate would be granted the power to make amendments to the Constitution.
Minister Williams, in an invited comment, after the judgement was passed down, said that the Government will not accept the decision and will move to the region’s highest Court to ensure that Guyana’s Constitution is upheld. “We believe that the ruling was flawed in many areas and, obviously, we believe that the entire issue must be settled by the Caribbean Court of Justice and so we will make the necessary approaches to that Court, but the Chancellor erred on many grounds,” the Minister said.
Explaining the infractions of the ruling, the Minister pointed out that the Chancellor held that Mr. Cedric Richardson, who brought the challenge to the term limit to the High Court, had a right under Article 177 of the Constitution to vote for a Presidential candidate of his choice, when in fact Article 177 gives Parliament, within the ambits of the Constitution, the power to make provisions for the conduct of elections of the office of President.
Article 177 of the Constitution states that “Subject to the provisions of this Constitution, Parliament may make provision for giving effect to the provisions of this Title and, without prejudice to the generality thereof, may make provision –– (a) for the conduct of elections to the office of President; and (b) with respect to the persons by whom, the manner in which and the conditions upon which proceedings for the determination of any question such as is mentioned in the preceding paragraph may be instituted in the Court of Appeal and, subject to any provisions made under subparagraph (b), provision may be made with respect to the matters referred to therein by rules of court.”
The Attorney General explained that Guyana Constitution in Article 177 makes provisions for Guyanese to vote for a list of Candidates and “An elector voting as such an election in favour of a list shall be deemed to be also voting in favour of the Presidential candidate named in the list.” —PTO—
“He hasn’t addressed my contention that there is no direct vote for President in this country and no voter in Guyana determines who would be a Presidential candidate. All of that is for a political party and you vote for a political party and not for a Presidential candidate. So the Presidential candidate is tagged on to a party list and the electorate votes for the party list and when they are voting for the party list, Article 177 says that they are deemed to be voting for the Presidential candidate… The Presidential candidate cannot become president unless the party list is successful,” the Attorney General explained.
Given Guyana’s electoral system, Minister Williams said that it is, therefore, a grave error for the acting Chancellor to state that under Article 177, Richardson has a right to vote for a Presidential candidate of his choice.
Further, Minister Williams said that Justice Singh erred when he failed to determine whether the altering by Act no. 17 of 2001 of Article 90, that is, by introducing term limits for Presidential candidates, was ultra vires [or beyond one’s legal power or authority] in the Constitution and unlawful. Act no. 17 of 2001 of Article 90 (2) states that the “A person elected as President after the year 2000 is eligible for re-election only once. (3) A person who acceded to the Presidency after the year 2000 and served therein on a single occasion for not less than such period as may be determined by the National Assembly is eligible for election as President only once.”
Refuting Richardson’s contention that the term limit infringes on Articles 1 and 9 of the Constitution, Minister Williams argued that Article 164 (2) (b) allows for alternations for Article 90 as long as it is done in line with prescribed procedure. Article 66 states, “Subject to the special procedure set out in article 164, Parliament may alter this Constitution.”
Elaborating on these provisions, Minister Williams said, “They were required to address the issue of whether the alteration of Article 90 was valid or not. It is clear that it is valid. They now had to go further to show whether it affected Articles 1 and 9… So we are saying that the court erred by not determining whether it was a lawful alteration of Article 90 by a two-thirds majority.”
Richardson had made his application on the basis of Article 1 of the Constitution, which states, “Guyana is an indivisible, secular, democratic, sovereign state in the course of transition from capitalism to socialism and shall be known as the Co-operative Republic of Guyana” and Article 9, which states “Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution.” Minister Williams said that Justice Singh erred when he ruled that Articles 1 and 9 gave Richardson a personal interest enough to qualify him to bring an originating summons. According to the Minister, those articles are of general application and they do not give any individual rights.
“He has no locus standi, [which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case,] to bring this originating summons. He had to show interest over and above other people and of course he could not show that interest so Chancellor Singh erred by holding that the interest he had was given to him by Articles 1 and 9, which are Articles of Statement of Principles,” the Attorney General said.
Justice Singh’s ‘flawed ruling also compared judgments in other jurisdictions to the current case. According to Minister Williams, when Justice suggested that the right of voters to vote for persons of their choice, candidates of their choice in other countries including America, he failed to take into account that Guyana’s Constitution and electoral system is not the same as those identified in his ruling. “There are two different systems and so that is an error by trying to apply the principles applicable to other countries to Guyana when Guyana has a peculiar system of Proportional Representation,” he said.
Justice Singh continued to blunder, Minister Williams explained, when he suggested and ruled that the introduction of term limit is diluted democracy in Guyana. However, Minister Williams said that democracy was in fact enhanced by the term limit, since there have been three General Elections after the coming into effect of the alterations in Article 90.
“They were three elections and everyone would agree that those three elections successfully were the most peaceful elections in the history since Independence of Guyana. So we saw dynamic changes in the way the results of elections operated. We have had a majority Opposition Parliament and a minority Government and now we have a majority Government with one vote… So everyone can see the dynamism that has resulted with the change and the introduction of a two term limit and another error that the Chancellor Singh made was that they never took into account the circumstances, the social and political that prevailed at the time and which caused Act 17 of 2000 to be passed,” the Attorney General said.
Minister Williams said that the Government will be happy to have the matter finally resolved in the Highest Court, the Caribbean Court of Justice and it confident that its position will be vindicated.
“We believe that we would be vindicated because the question of altering term limits could not dilute democracy and the sovereignty of the people of Guyana. It could not curtail freedoms because people are still voting as they did before the amendment. They are still voting for a party list under which Presidential candidates are tacked on. They still don’t vote directly for a Presidential candidate in Guyana. They still vote for party list. They did that before the amendment and they still doing it after the amendment so there is no fundamental alteration. What was altered was simply to ensure that we have a system that would make our political organisation and social organisation, sustainable and viable and peaceful and that’s all that the amendment wanted,” he said.