Third term debate ... CJ ruling inexcusable, bereft of rationality - former CCJ Judge

Third term debate … CJ ruling inexcusable, bereft of rationality – former CCJ Judge

Jul 12, 2015 News

…Dangerously close to trumping judicial supremacy

Former CCJ Judge Duke Pollard

Retired Caribbean Court of Justice Judge, Duke Pollard, has blasted the recent ruling by Chief Justice Ian Chang, describing the legal argument used by Chang as “bereft of rationality” and in breach of the provisions of Article 1 of Guyana’s constitution.
Even worse, according to Pollard, the CJ, in seeking to make alterations to something already clearly and definitively pronounced on, had tread dangerously into conflict with judicial supremacy of the constitution of Guyana, as laid out in the proviso of Article 164 (2) of the constitution, something “no Judge should dare do”.
The Judge was responding to a recent ruling by Chang, which overruled the limitation specified in Act No. 17 of the 2001 constitutional amendment, that had previously barred an individual from being elected President for a third term.
Central to the issue is the court case Cedric Richardson vs. the Attorney General and Raphael Trotman, which sought to determine the extent and nature of the power of Parliament to amend the Constitution of Guyana.
Richardson had contended that the limit was unconstitutional and illegal. He sought to show that the amendment should have been determined through a referendum in the first place, instead of the two-thirds parliamentary majority method that was used.
Richardson alleged that Act No.17 of 2001 purporting to amend Article 90 of the Guyana constitution, which disqualified a person from seeking election more than twice as President of Guyana, “diminished and restricted the electorate’s democratic right of choice.”
Justice Pollard said, however, that such a suggestion was irrational. On the contrary the provisions of Article 164(2) expressly prescribed that there was no need for approval by referendum of the relevant bill, which was passed by a two-thirds majority vote and did not alter any provisions of Articles 1 or 9 of the Guyana constitution.
This, according to Pollard, meant that Act No.17 of 2001 never required approval by referendum to establish its constitutional validity, as Chang had previously determined.
Chang, in his ruling, had opined: “There can be no doubt that Parliament could have altered Article 90 by two-thirds majority of all the elected members of the National Assembly. But in so far as those alterations diminished and further restricted democratic sovereignty which, under Article 164(2) was procedurally protected by the requirement of a referendum for its legal validity and efficacy, the holding of a referendum was required”.
Pollard blasted Chang’s use of the term “democratic sovereignty” and described it as an attempt to use judicial oxymoron, which contradicted itself, was undecipherable and without rational analysis.
In addition, Pollard pointed to the original summons filed by Richardson, which alleged that Act No. 17 of 2001, amending Article 90 of the 1980 constitution required a referendum, stating specifically that under Article 164 (2), the relevant section reads “Provided that if the bill (containing the proposed Act No. 17 of 2001) does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the National Assembly by votes of not less than two thirds of all the elected members of the Assembly it shall not be necessary to submit the bill to the vote of the electors.”
The Bill in question, Pollard went on to note, was indeed supported by a two-thirds majority in the National Assembly. It did not alter any provisions in Article one or nine, as stated in subparagraphs 164 (2) (a).
Pollard went further, pointing out that nowhere in Richardson’s original case did he purport to say that Act. No. 17 of 2001 abrogated or destroyed fundamental rights or normative requirements constituting the core of Guyana’s constitution.
Pollard said that the CJ had wrongly assimilated democratic voting rights of the Guyana electorate into the fundamental requirements and features of the constitution, articulated by Chief Justice Conteh of Belize and exemplified by Sikri CJ of the Supreme Court of India.
The former Judge was adamant that there was a difference between the normative requirements mentioned by Chang, versus the mainstream concept. “normative requirements”, as described by Conteh C.J spoke, in the present context, to a constitution of a legal and political collectivity (the separation of powers, protection of fundamental rights and the rule of law), rather than what Chang had “wrongly” determined to mean the discrete political rights of citizens of a democracy.
Pollard pulled the rug fromunder Chang’s dictation, stating that the CJ was erroneous in relying on Conteh and Sikri to rule that Act No. 17 of 2001 was unconstitutional, since Sikri CJ, while also addressing the amending powers of parliament was essentially concerned with identifying attributes of the state as a political unit.
A more applicable rule of thumb for statutory interpretation, Pollard went on to add, would have been the eiusdem generis rule to interpret democratic provisions, contained in Article 1 of the Guyana constitution (Fransis Bennion, Statutory Interpretation, 2002,pp. 1054 ff).
Pollard expressed surety that such an “irretrievably flawed” ruling is likely to be overturned upon appeal, a course the Government has since indicated willingness to take. Pollard noted that, among its myriad of deficiencies, an argument of bias could be made against Chang’s ruling by references to provisions in the Bangalore Draft Principles and the Latimer House Guidelines on judicial conduct.
Pollard was pellucid in the fact that, where the country’s supreme law had pronounced clearly and definitively on an issue, such as in the proviso of Article 164 (2) of Guyana’s constitution, “no judge should dare to tread contrarily lest judicial determinations be unwittingly construed as trumping constitutional supremacy.”