No victory for democracy

Jul 05, 2018 Features / Columnists, Peeping Tom

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A recent decision of the Caribbean Court of Justice (CCJ) in the case of the Attorney General vs. Cedric Richardson was not just about term limits. It was about the most fundamental nature of consent between elected representatives and citizens.
It is unfortunate that the analysis of this case has been reduced to one about whether former President Bharrat Jagdeo should have a third term. The question before the court was indeed about the constitutionality of term limits, but it was circumscribed by a larger issue of what elected parliamentarians are permitted to do in relation to the rights of citizens.
The decision has been greeted with elation on one side of Guyana’s political divide and despondency on the other side. The Jagdeo-haters are rejoicing in their perception that this judgment shuts him out from the presidency. His supporters on the other hand, who were of the false belief that he would have comfortably defeated any APNU+AFC candidate, are crestfallen by the decision, which effectively bars him from contesting.
An analysis which suggests that the decision is a victory for justice and democracy is misplaced and shallow.
The majority decision by the Caribbean Court of Justice was superfluous. Except for the dissenting judgment, it narrowly confined itself to the basic rules of legal interpretation and settled on the intent of the legislature in passing a constitutional amendment which imposed term limits.
The majority decision did not find favour with the argument that this constitutional amendment fettered the democratic rights of citizens, their right to sovereignty, and altered the basic structure of the Constitution.
This case was more than term limits. It was about the limits which ought to be placed by those who act in the name of the people. It was about the limits of the exercise of legislative power under the ‘social contract’.
Libertarians argue that before man entered into society, he enjoyed certain inalienable rights – the right to life, liberty and property. Man could not be disowned of these rights when government emerged, because they were unchallengeable.
Political theorists argue that when entered into a social contract in order to enter into society, he was required to be subject to government. Yet, it is accepted that there are certain inalienable rights over which no government should arbitrarily intrude. No government, for example, should arbitrarily deprive a man of his property, his freedom, or for that matter his human rights.
Article 9 of Guyana’s Constitution states sovereignty belongs to the people and is exercised through their elected representatives. The Cedric Richardson case asks us to consider the limits which can and should be placed on the legislature – the elected representatives who exercise sovereignty on behalf of the people.
With regard to fundamental human rights, most Constitutions do not allow these to be amended by simple majorities. Some states go as far as requiring either a referendum or special majority to change citizens’ fundamental human rights.
In Guyana, a number of provisions require a two-third majority or a referendum in order for these to be altered. These include the fundamental human rights. But there is also provision for if a Bill to alter these sections of the Constitution alters the ‘structural’ provisions of the Constitution, then such Bill can only be passed if it is approved by the people via a referendum.
Cedric Richardson’s lawyers were of the opinion that the legislature had no right to restrict the right of citizens to decide who they want for President, since this right is related to the exercise of sovereignty (Article 9) and the Constitution provides that where there is a collision between an amendment and Article 9 of the Constitution, a referendum is needed.
The CCJ ruled that no referendum is required, since the amendment to the Constitution which imposed term limits was passed with the consent of the then parliamentary political parties. The eminent jurists found that it was constitutional to impose term limits without resorting to the approval of the people via a referendum.
The decision raises worrying concerns. First, if sovereignty belongs to the people, is it absolutely exercised, in all instances, through the elected representatives? Or should the people be consulted directly through a referendum in relation to certain matters? And what are those matters? Second, should parliament be free to decide who should be limited from running for President without the direct consent of the people.
The right to choose a President is a right related to one’s choice of government. It is a right about how sovereignty is exercised. Term limits restrain the right of people to choose who they want as President, because it limits their choices and therefore the exercise of their sovereignty.
Should the people not have a say in deciding whether parliament should limit them in this respect? And should this not require the consent of the people via a referendum? Or should the legislature enjoy freedom to alter the democratic structure of the Constitution and limit the people’s sovereignty without direct consent?
The CCJ decision is not a victory for democracy. It is a licence for undemocratic collusion. A party or group of parties with a combined two-thirds majority in the legislature may well decide, using the CCJ precedent, that they can decree a one-party state or a President-for-life, or to take away people’s property without compensation, or to arbitrarily deny the right to liberty and life, without the direct consent of the people in whose name sovereignty is supposed to be exercised.

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