Ruling on Presidential term limit…Judgment proves one-man Constitutional Court inappropriate

Jul 15, 2015 News

---

– Former Auditor General

The recent ruling by Chief Justice (ag) Ian Chang on the Presidential term limit, is according to Former Auditor General Anand Goolsarran, enough evidence to prove just how inappropriate it is to have one Judge presiding over the Constitutional Court.
On Friday last, the CJ ruled that the presidential term limit imposed by the 2001 amendment to Article 90 of the Constitution is unconstitutional, unless it is approved by the citizens in a referendum.
That article states that: (a) a person who acceded to the Presidency after the year 2000 is eligible for re-election only once; and (b) a person who acceded to the Presidency after the year 2000 and served therein on a single occasion for less than  such period as may be determined by the National Assembly, is eligible for election as President only once.
The Chief Justice ruled that the approval of the people through a referendum is needed for placing term limits on the Presidency and that the 2001 constitutional amendment is invalid and without legal effect.
Chang, in his ruling, asserted that: “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”.

Goolsarran recalled that Chang referred to Article 164 (2) (a) of the Constitution “which requires any Bill to amend Article 90 to be supported by: not less than two and not more than six months after its passage through the National Assembly…Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at a final voting in the 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.”
Subparagraph (a) refers to any alteration to articles 1, 2, 8, 9, 18, 51, 66, 89, 99 and 111.
Since Article 90 is not listed in subparagraph (a), Goolsarran said that there is no need for a referendum, since the Bill to amend article 90 was supported by two-thirds of the votes of all the elected members of the Assembly.
He recalled that Chang, however, justified his ruling by contending that the amendments to Article 90 “curtail people’s democratic choices” and offends declarations in Articles 1 and 9 that Guyana is a “democratic state” in which “sovereignty resides in the people.”
Goolsarran in his recent writings said that it is improper for the adjudication of all constitutional matters to be placed in the hand of a single individual, regardless of how knowledgeable and experienced he/she may be in such matters.
He added, “Besides, the person has been acting in the position of Chief Justice for about a decade, which can have a negative impact on the independence of the judiciary.”
The Former Auditor General said that given that the Constitution is the highest law of the land, it would have been more appropriate for a group of eminent judges to be involved, so that any pronouncement would have the benefit of the collective view, as opposed to an individual one.
He reminded, however, that former Speaker Raphael Trotman, who was a respondent in the matter, has signaled an intention to test the ruling “in the highest court, because if allowed to stand it would really undermine the very constitutional framework of the country and put the entire country into a tailspin”.
Chang’s ruling was also disapproved of by Prof. Justice Duke Pollard who said, “The judgment is arguably tendentious, occasionally pleonastic, bereft of sustained rationality, and strangely and curiously, not to mention inexcusably, has eschewed the application of the required rule of statutory interpretation in construing the provisions of Article 1 of the Guyana Constitution, given the concatenation of genus-describing attributes employed therein….”
“In my respectful submission, therefore, the determination of our learned Chief Justice in Cedric Richardson v Attorney General and Raphael Trotman is irretrievably flawed and is likely to be overturned on appeal, given among other deficiencies, an arguable perception of bias by reference to the relevant provisions of the Bangalore Draft Principles and the Latimer House Guidelines on judicial conduct.”
He argued that in the ultimate analysis, the Constitution, the supreme law, relieved Parliament of the need to secure approval of Act No.17 of 2001 by referendum.
Attorney General (AG) and Minister of Legal Affairs, Basil Williams, had emphasized the need for improving the perception of fairness in the Constitutional Court and for eliminating the backlog of cases in the judicial system.
Williams in an interview with this newspaper had said that Government maintains its position that the Constitutional and Commercial Courts, both manned by one Judge, require additional adjudicators.
The AG had said, “We believe there should be an additional Judge in the Commercial court and the Constitutional court. We will also make moves to deal with the case of insufficient Judges in the Court of Appeal as well. This is a serious matter for me.
“With only one Judge in those important Courts, it would obviously lead to a backlog of more cases in the system and the Judges being overwhelmed. I intend to address that.”
However, Chancellor of the Judiciary, Justice Carl Singh, had said that the addition of another Judge to the Constitutional Court may be desirable but constitutional matters are grave and weighty and as such, the CJ is the most senior Judge of the High court and the most experienced one at that.
“So we shouldn’t be knocking the court. If there is dissatisfaction, there is the Court of Appeal and then there is the Caribbean Court of Justice,” Justice Singh said.
He had added, “When we get our full complement of Judges then we can address having two constitutional departments, but right now the judicial manpower does not permit it.”

---

---