The Sovereignty of the People appeal case commenced on Monday before the Caribbean Court of Justice (CCJ) with Attorney General (AG) Basil Williams and his team challenging the decision of the Guyana Court of Appeal to uphold the 2015 ruling by Chief Justice (ag) Ian Chang that the 2001 amendment to Article 90 of the Constitution was unconstitutional.
Government, last year, decided to have the case heard in the CCJ after the Appeal Court in Guyana had dismissed the appeal against the ruling of former Chief Justice (ag) Ian Chang – which had stated that in Guyana, sovereignty resides in the people, and not in the Parliament.
The constitutional challenge case which was brought by Georgetown resident Cedric Richardson in February 2015 had sought the court’s interpretation of the National Assembly’s changes to Article 90, as those related to four restraints on the freedom of choice by citizens at national elections.
Richardson argued, through his lawyers that the amendment – Article 17 of 2000 – unconstitutionally curtails and restricts his sovereign and democratic right and freedom as a qualified elector to elect a specific person of his choice as the Executive President of the Cooperative Republic of Guyana.
Richardson had also contended that the limit was unconstitutional and illegal. He sought the court’s interpretation to determine whether a referendum on the amendment should not have been held, instead of the two-third majority in the National Assembly having the power to decide the limit on the number of terms.
Justice Chang had ruled in July 2015 that the alteration of Article 90 by the Act No 17 of 2000, in substance and effect, undoubtedly diminishes the democratic rights of the electorate in electing a person of their own choice as President.
Justice Chang noted that such an amendment needs a referendum and is invalid and without legal effect for reason of non-compliance. He further ruled that Act 17 of 2000 seeks to dilute the pre-existing democratic rights of the electorate to elect a President of their choice.
As he opened his argument before the CCJ today, AG Basil Williams said that the amendment to Article 90 of the Constitution was passed.
“The Act was assented to by then President Bharrat Jagdeo who is the object of this appeal in terms of the only person re-elected twice” said Williams.
President of the CCJ, Justice Denis Bryon then requested that the AG meet with Richardson’s group of Attorneys- led by Senior Counsel Douglas Mendes- so as to submit the appropriate background information regarding the case to the CCJ.
Representing Government also was Barbadian Senior Counsel Hal Gallop who maintained that sovereignty of the Constitution and the amendments that allowed the changes to the law must be protected.
Gallop argued that the amendments were done in the proper way as prescribed by the same Constitution, where the Parliament decided on the changes instead of the citizens of the country.
Solicitor General Kym Kyte contended that CCJ upholding the Appeals court’s decision will impact on other constitutional bodies such as the ethnic relations, women and gender commission and human rights and rights of indigenous peoples.
She further stated in a subsequent presentation that there were no challenges since the amendment was made and as such, it can be presumed that the changes were accepted.
Richardson’s lawyer, Mendes however, said that the Court would act in an unconstitutional manner if his client’s case is not heard, maintaining that the case is not an abuse of process.
In response to Kyte’s argument, Mendes noted that a “delay cannot constitutionalise a void act” while asserting that “the passage of time does not purify a law that is unconstitutional.”
Mendes also argued that the fact that the issue was not broached during the court proceedings at the Demerara High Court and Court of Appeal, respectively, “…is wrong and unfair and it is contrary to the rule of law.”
He also posited that the limit of choice of the Presidential Candidate infringes upon the sovereignty of the people which is guaranteed according to Guyana’s constitution.
According to Mendes, “sovereignty of the people is undermined as you begin to limit the persons they can choose as their representatives…That right is infringed when you add a disqualification.”