By Dr Lawrence A Joseph
On 9 July 2015, the Acting Chief Justice of Guyana, Ian Chang, ruled in the High Court that the purported alteration to the country’s 1980 Constitution in 2001 was unconstitutional. In 2001 the National Assembly (Guyana’s Parliament) enacted legislation with a two-thirds majority support purportedly altering Article 90 of the 1980 Constitution to establish the term limit of a President to no more than two terms. This matter came up in the High Court as a result of a legal challenge which was made to that parliamentary procedure by a private citizen, Cedric Richardson. The writ was filed against the Attorney General and the Speaker of the National Assembly in December 2014.
At the time, supporters of then President Bharat Jagdeo seemed to have expressed an interest in his running for the presidency for a third term. However, it was the general understanding that that proposition was unconstitutional. Jagdeo’s party, the People’s Progressive Party (Civic) eventually lost the 11 May 2015 general elections to the APNU/AFC of now President David Granger. The question therefore of Jagdeo becoming President for a third term after those elections became mute. However, if the present court ruling is left unchallenged then it clears the way for him to run as a Presidential candidate for a third time at the next general elections.
Acting Chief Justice Chang upheld the contention of the applicant that the purported alteration of the Constitution by the 2001 legislation diminishes and reduces the level of democracy enjoyed by the electorate and therefore required the holding of a referendum for such alteration. The Acting Chief Justice went on further to state that “an alteration of the 1980 Constitution may be by way of repeal, modification or suspension of any of its provisions… But there can be no substantive addition to its provisions in the sense that no new subject matter can be introduced under the guise of alteration.” He concluded that limiting the term of the President to no more than two was an addition to the provisions of the Constitution.
The stakes for the government are very high as besides directly impacting on the presidential term limit, the High Court ruling also has significant implications for several other constitutional amendments. These were made over the years by a two-thirds majority of the National Assembly without the holding of referenda. These include the establishment of several rights-based commissions which gained multi-party consensus before passage of the relevant Acts. From all appearances, the government intends to appeal to the Guyana Court of Appeal to overturn the decision and if necessary, to appeal to the Caribbean Court of Justice which is Guyana’s highest Appeal Court.
When Guyana became independent in 1966, its Independence Constitution kicked in. In 1978 a constitutional referendum was successfully held under then President Forbes Burnham on 10th July 1978 which altered Article 73 of the 1966 Constitution. This alteration abolished the need to hold referendum to change certain entrenched provisions including presidential powers, dissolution of Parliament and the electoral system. It was following this alteration that the present 1980 Constitution took effect.
Article 164 (1) of the 1980 Guyana Constitution allows votes of the majority of the National Assembly to alter the Constitution but subject to subsections (2) and (3). Sub-section (2) establishes two categories of Articles: some in sub-paragraph (a) and some in sub-paragraph (b). Sub-section (2) provides that if a Bill does not set out to alter any of the provisions in sub-paragraph (a) and is supported by not less than a two-thirds majority of votes in the National Assembly, then it is not necessary to have a referendum. Article 90 which deals with the term limit of the President, is not included in sub-paragraph (a) but is in sub-paragraph (b). It is most reasonable therefore to interpret this as establishing that there is no necessity to hold a referendum with regards to Article 90, contrary to the ruling of the Acting Chief Justice.
Moreover, the point which the Acting Chief Justice made that there can be no substantive addition to the provisions of the Constitution under Article 164 does not seem to have much merit. Article 164 (3) (b) to which reference was made makes it clear that reference to altering the constitution “include” repealing it, modifying it and suspending it. However it does not preclude making new provisions.
Following the above analysis of the decision of the Acting Chief Justice Chang, it is highly probable that his decision pertaining to Richardson’s case will be overturned.