THE CAT AND THE PIGEONS

Jul 11, 2015 Features / Columnists, Peeping Tom

Within the past two decades we have seen emerged within western hemispheric jurisprudence, to tendencies as it relates to the presidencies. The first has been the erosion of constitutional immunities and the second has been the striking down of presidential terms limits.
Guyana has now joined the latter bandwagon. A ruling on Thursday by the Chief Justice has found that term limits are repugnant to the democratic expression of the people.
It also found, and this is something this column had argued years ago, that the manner in which our Constitution was amended to allow for presidential term limits was unlawful.
Term limits in Guyana’s constitution have been struck down on both substantive and procedural grounds. In the first instance, it was ruled, according to reports in the media, that term limits are repugnant to Articles 1 and 9 of the Constitution. Interestingly these two provisions have long been held, at least by me, to be declaratory provisions. But the fact that they may be unenforceable does not mean that they have no legal effect, as we are now seeing.
The second limb is more important. The Constitution was amended to allow for term limits without going to referendum. As such, the Act that brought into being the limitation of presidential term limits was deemed ultra vires of the constitution.
The ruling has taken many in the legal profession by surprise, because many felt that it would have revolved around the interpretation of the specific provision of Constitution that imposed term limits. Many felt that the case would have turned on whether the meaning of the word “re-elected.” From what is being reported in the media, it would seem that this argument was silent in the decision.
The striking down of term limits will now allow for former President Bharrat Jagdeo to be eligible for re-election. This may be a good thing for the ruling coalition because despite the former president’s obvious popularity, there is widespread belief that it was the former President’s policies that were mainly responsible for the PPPC’s loss of the elections and the return of Bharrat Jagdeo to frontline politics will virtually guarantee a second term for the ruling coalition.
Having dumped the PPPC and the legacy of the Jagdeo administration, it is difficult to see how the population will go back to reelecting him as their President. But stranger things have happened in politics in Guyana, have they not?
In Nicaragua, Daniel Ortega and his Sandinista government, highly popular at the time with the poor, lost an election and were out of power for a long time. But Ortega returned and not only secured two terms but also a third term after the courts in his country, like was done in Guyana on Thursday, deemed that term limits were unconstitutional. The grounds in Nicaragua were different. There was held that term limits denied equal opportunity. It was ruled that to deny someone the opportunity to run for the presidency was a denial of equal opportunity.
Guyana does not have an equal opportunity clause similar to what exists in Nicaragua. New grounds have been offered in the recent decision by our High Court.
Term limits have been rolled back in yet another landmark decision by our Chief Justice. It is left to be seen whether anyone is going to challenge presidential immunities and seek to have these deemed to be unconstitutional.
If they are, that would do more than simply throw the cats among the pigeons.