Chancellor of the Judiciary (ag), Carl Singh is expected to rule on a State-sponsored appeal against former Chief Justice (ag) Ian Chang’s ruling that in Guyana, sovereignty resides in the people and not in the Parliament as it does in Britain; and as such, certain fundamental clauses in the Constitution that serve to define its substantive nature, can only be altered by a referendum of the people.
It is analogous to the reverse requirement that when a referendum of the people of Britain chose Brexit, their Supreme Court ruled that their Parliament as sovereign rather than the British people had to make the decision.
Justice Chang’s ruling was appealed by then Speaker of the National Assembly, Raphael Trotman and current Attorney General Basil Williams. The constitutional challenge case was led by Georgetown resident Cedric Richardson in February 2015, and sought the court’s interpretation on the National Assembly’s changes to Article 90 as it related to four restraints on the freedom of choice by citizens at national elections. As adumbrated by Justice Chang, “The purported alteration of Article 90 by Act No. 17 of 2001, in substance and effect, undoubtedly diminishes the democratic rights of the electorate in electing a person of their own choice as President, by excluding from Presidential candidature:
(1) Citizens of Guyana not resident in Guyana on Nomination Day
(2) Citizens of Guyana resident in Guyana on Nomination Day but who have not been continuously resident in Guyana for seven years prior to that date
(3) Citizens of Guyana by registration
(4) Citizens of Guyana who have served for two terms as President.
As such, the purported alteration by Act No 17 of 2001 purports to curtail the people’s electoral democratic choices and to offend the declaration in Article 1 that Guyana is a democratic state (in which the sovereignty resides in the people Article 9). This is precisely why, for the purpose of any alteration of Articles 1 and 9, the voice of two-thirds of the elected members of the National Assembly is not the voice of the people.”
The case, which was /led by Attorneys Emily Dodson and Shawn Allicock, on behalf of Richardson, argued that Act 17 of 2001, which was passed by a two-third majority in the National Assembly, unconstitutionally curtails and restricts his sovereign and democratic rights and freedom as a qualified elector to elect specific persons of their choice as President of Guyana.
Richardson had contended that the limit was unconstitutional and illegal. He sought the court’s interpretation to determine whether the amendment with referendum should not have been held, instead of the two-third majority in the National Assembly having the powers to decide to limit the number of terms.
As such, while the Constitution provides for representative democracy, such representative democracy cannot encroach on popular sovereignty from which it derives and which is entrenched by the requirement of the referendum.
Justice Chang’s interpretation of the constitutional provision rested on a “normative” substantive republican values rather than the older, procedurally-driven Liberal view of constitutions as merely “descriptive”. While he cited two cases – the Belize case Bowen vs The Attorney General BZ 2001 SC 2, and the Indian case Kesavananda Bharati vs the State of Kerala (1974) 1 SCC (Jour) 3 to support his ruling, it appears there was a refusal by his critics to deconstruct the difference between the two approaches and to accept as the Indian Supreme Court did, “while there was no implied limit to constitutional amendment, the very nature of the word “amend” meant that Parliament could not abrogate or destroy the foundation or the basic structure of the Constitution.”
In the Liberal procedurally driven perspective on constitutions, the protection of the negative freedom of the citizens, adumbrated as “fundamental rights”, against the Leviathan state, is paramount, but as stated by the theorist Jurgen Habermas, in the substantive republican view, “…the State’s raison d’etre does not lie primarily in the protection of equal private rights but in the guarantee of an inclusive opinion- and will-formation in which free and equal citizens reach an understanding on which goals and norms lie in the equal interest of all.”
It is this insistence that it is the will of the people must be untrammelled in the exercise of their positive freedom, that Justice Chang’s ruling rests.
And it is this interpretation of the Constitution that the Government via Trotman and Williams rejects and appealed. Today, Chancellor Carl Singh will rule on their appeal. (Guyana Times)