The Richardson case is more than the presidential third term

Mar 22, 2018 Features / Columnists, Peeping Tom

The Cedrick Richardson case relating to the constitutionality of presidential term limits under the Constitution of Guyana, is being tried in two courts. It is the being heard before the Caribbean Court of Justice and is also being tried in the court of public opinion.
The trial by public opinion is heating up. Already one letter writer, after only the preliminary arguments, has predicted that Richardson’s defense will prevail, while a retired judge is not in agreement with this conclusion.
The case has attracted the label of a third term case. The case will most likely determine whether Bharrat Jagdeo or David Granger qualify to run for third terms as President. But the case has wider implications.
The case has more to do with the concept of constitutional supremacy than it is about whether Jagdeo or Granger will qualify for third terms as President. The case is about the constitutionality of the Act, which sets term limits under Guyana’s Constitution. The decision in the case will decide whether there are limits to the exercise of sovereignty by the elected representatives of the people.
It will also pronounce on whether in the name of the people, parliamentarians can pass legislation, which is in violation not just of provisions of the Constitutions but the structure of the Constitution.
This case should not be reduced to spurious arguments about the meaning of ‘democratic’ and ‘sovereignty’ of the Constitution and whether the Courts have to apply the rule of ‘noscitur a sociis’ in defining such terms.
This is likely to be the least of the problems of the court, because in common law, the interpretation of Article 1 of the Constitution – which deals with Guyana being a sovereign democratic state – and Article 9 – which addresses the question of the exercise of sovereignty by the elected representatives of the people – have been the subject of legal precedent.
As recent as October 2016, the Privy Council, in Madhewoo v The State of Mauritius and another discussed Article 1 of the Constitution of Mauritius, which is similar to Article 1 of the Constitution of Guyana. The court observed that Article 1 is “a bastion to protect the rule of law and separation of powers, including a judiciary independent of both the executive and legislature.”
There is therefore no need for prolonged debate as to what rule the court should use in defining words ‘democratic’ or ‘sovereignty’ in its interpretation of Articles 1 and 9 of the Guyana Constitution.
Article 9 is about sovereignty residing with the people and being exercised through their elected representatives. The elected representatives – the parliamentarians – under both the Constitutions of Guyana and Mauritius are required to make laws for the peace, order and good governance.
Jjustices in the above mentioned case said that this law-making function was subject to the supremacy of the Constitution. In other words, parliament cannot do as it pleases. It is constrained and subservient to the Constitution.
And this is one of the main issues of the Richardson case. It is about whether parliament, without resorting to the people in whom sovereignty resides, can simply by an Act move Amendments, which collide with the structure of the Constitution.
The case will also help pronounce on the philosophy of the CCJ. This case will test the conservatism of the CCJ. This column has long argued that Justice Chang’s decision was path-breaking, novel, insightful and visionary. It is a decision, which will rewrite constitutional law, if not in this case, in the future.
The outcome of this case will decide whether the respected jurists of the CCJ are steeped in conservatism or are bold enough to embrace Justice Chang’s insightful ruling, which was affirmed by majority by the Court of Appeal. The Richardson case is about more than presidential third term limits.

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