The Richardson challenge is not about ‘third term’

Apr 24, 2018 Letters

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Dear editor,
I am writing to share my opinion on the ’’third term” case which is not about a third term. It is about to whom sovereignty belongs– the people of Guyana or our parliamentarians. I shall use a pseudonym given the demonstrated vindictiveness of the Attorney-General to people who do not share his views.
Article 9 of the Constitution of Guyana does provide for the people to exercise sovereignty through their representatives and the democratic organs established by the Constitution and one of those organs is Parliament (see Article 50)
Article 9 provides: ‘’Sovereignty belongs to the people who exercise it through their representatives and democratic organs established by or under the Constitution’’
Article 9 unarguably constitutionalises representative democracy. But while Article 9 constitutionalises representative democracy as part of the political system of Guyana, representative democracy is certainly not overarching in respect of the operation of all the provisions of the Constitution simply because the Constitution contains many Articles which cannot be altered except by a referendum.
One of the Articles is Article 1. Ironically, another of these Articles is Article 9 itself. Thus representative democracy does not suffice to alter many Articles in the Constitution including Article 1.
The sole question in the Cedric Richardson’s case is therefore whether in altering Article 90 (which contains the qualifications for Presidential Candidate), the alteration is entrenched on Article 1 by way of infection.
Article 1 provides: ‘’Guyana is an indivisible, secular, democratic sovereign State…’’
Since both Articles 1 and 9 (sovereignty belongs to the people) preceded the alteration of Article 90 (by 17 Act of 2000), the sole question is whether the sovereign right of the electorate in Guyana as a democratic state has been eroded or curtailed by the alteration of Article 90 by Act 17 of 2000.
If, immediately prior to the alteration to Article 90 , the people enjoyed the right to elect any person who had met the then presidential qualifications for Presidential office as part of their sovereign right in a democratic state, then the questions must be answered in the affirmative since the alteration does erode or curtail their pre-existing right to a democratic election.
The issue is not at all the candidate’s right to contest the election but the electorate’s right to elect. The issue is not at all whether the erosion or curtailment is egregious but rather whether it is permissible without the necessity of a referendum the decision of the Privy Council in State of Mauritius v Khovratty (2007) IAC80, stated.
‘’The idea of democracy involves a number of different concepts; first that the people must decide who should govern them. Second, is the principle that fundamental rights should be protected by an impartial, independent judiciary.
Third, in order to achieve a reconciliation of inevitable tensions between these ideas, a separation of powers between the legislature, the executive and the judiciary is necessary.
There can therefore be no doubt that the right of the people to elect their ruler is part of the democratic system of government in Guyana as a democratic society (Article 1). That right in the people inheres in their sovereignty (Article 9).
That democratic and sovereign right cannot be diminished by a 2/3 majority of the representatives. Otherwise 2/3 majority of the representatives would be able to trump constitutional supremacy whenever the Constitution itself requires a referendum for its own alteration.
Representative democracy is not at all overarching. The Constitution itself by prescribing a referendum for alteration of some of its provisions bears testimony to this constitutional truism. The Constitution permitted representative democracy. It did not exclude the direct voice of the people.
It, in fact, reserved it in certain situations. One of such situations must be when there is an issue of the curtailment or erosion of the foremost democratic right of the people themselves to elect their ruler.
The Cedric Richardson case, it must be emphasised, is not at all about the exercise of the sovereign right of the people through their representatives. Rather it is about the curtailment (or attempted curtailment) of the sovereign right of the people to directly elect a President of their own choice. – a right which they have enjoyed prior to the passing of Act 17 of 2000.
Such a democratic right has always been part of their sovereign power under Article 1 – which requires a referendum for its alteration. Article 9, while constitutionalizing representative democracy, cannot be construed as excluding popular democracy (the direct voice of the people).
Article 9 does not attempt to silence the direct voice of the people and enthrone the indirect (representative) voice of the people. Otherwise, it would be that the representatives of the people who are the sovereign rather than the people themselves. But Article 9 expressly states that sovereignty belongs to the people.
Regards
Dede

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