Guyana is becoming a litigious society

Jul 13, 2015 Features / Columnists, Peeping Tom

Constitutional interpretation should not be made into rocket science or obfuscated with references to legal irrelevancies. Constitutional interpretation is usually a simple and straightforward matter.
Article 90 of the Constitution addresses term limits of the Presidency. Article 164 of the Constitution of Guyana is very exact.
If you wish to amend Article 90 of the Constitution by an Act of Parliament, the relevant Bill has to be first passed by the National Assembly and then subject itself to a referendum.
As such it follows that if there is to be any amendment to Article 90, it is subject to a referendum.
As far as I am aware there never was a referendum to formalize the changes made to Article 90 of our Constitution and therefore those amendments, however settled they may have become, were enacted via a deficient route and are null and void. It is now for the National Assembly to correct itself and embrace the correct procedure.
Alternatively if it is felt that the recent ruling by our Courts on this question is flawed, then there is recourse to appeal. This matter can be debated within the media and the letter pages of the newspapers but it has to be tried in a court of law.
The Court is the guardian of the Constitution. It has long been held that when it comes to disputes over the interpretation of the highest law of the land, indeed of any law of the land, it is for the Court to decide. That is the basis upon which constitutional order is founded.
The Court in Guyana is going to be asked more searching questions in the years to come. While much attention is now being paid to the issue of term limits, no one has yet challenged the immunities granted to Presidents.
All over Latin America such challenges have taken place and in some instance were upheld, thus allowing for the prosecution of those who were alleged to have violated human rights.
Immunities under our Constitution were intended to shield the highest office in our land from frivolous law suits.
They were never intended to allow for the condoning of executive abuse and lawlessness and therefore if it is discovered that such conduct was manifest in Guyana at any time, then there should be no immunizing of such wrong doing.
It has been reported that a limited amnesty was granted recently to allow for the recovery of State assets. It is not clear what was the legal basis upon which this amnesty was granted and whether those purporting to grant the amnesty were so authorized. This issue of the amnesty needs to be made more clear and specific because if there is to be a unit to recover State assets, then this unit cannot be formed on the basis of speculation.
It has to be established based on evidence that State funds have been stolen. The unit itself should have been involved in the granting of any amnesty and such an amnesty should have been authorized under the law and be transparent.
It is discriminatory for an amnesty to be granted to recover one type of assets but not another type. This issue of the amnesty is likely to be tested in the Court because Guyana is becoming, healthily so a litigious society.
The world is changing and Guyana is likely to change with it. Expect sooner or later for either legislation to be passed decriminalizing marijuana use and allowing liberalization of laws concerning lesbians, gays and transgender.
Guyana cannot avoid addressing these issues. But before it does this there are numerous questions for the Court to determine. The faster the Court does this, the better.

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