Ram tackles Chang over term limits ruling

Ram tackles Chang over term limits ruling

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(Ram and Chang in happier days SN photo)

Here is Chris Ram’s Take on the controversial term limit ruling (our bold highlights)

 

Third Term Decision
On July 9, 2015 Ian Chang, Chief Justice (ag), sitting as the Constitutional and Administrative Division of the
High Court, gave his decision in the case Cedric Richardson v. the Attorney General of Guyana and the
Speaker of the National Assembly. Attorneys Mr. Shawn Allicock and Ms. Emily Dodson appeared for
Richardson while then Attorney General Anil Nandalall appeared in person while Attorney-at-Law Mr.
Roysdale Forde appeared for the Speaker.
Both attorneys Nandalall and Forde made submissions and cogent arguments in the case but strangely, the
37-page Decision cited not a single reference to any of those submissions or arguments.
It is instructive to note further that while this case was all about Parliament’s powers to make laws, Mr.
Chang did not once address Article 65 of the Constitution which provides that “Subject to the provisions of
this Constitution, Parliament may make laws for the peace, order and good government of Guyana.” That
Article was examined extensively in a highly respected decision of the Guyana Court of Appeal in A.G. v.
Mohamed Ally (1987) 41 WIR 176 CA Guyana and was described by then Chancellor Massiah as words
which “do not define and delimit the categories of legislation which Parliament might properly enact, but
merely state in compendious formulation the repleteness of Parliament’s legislative authority”.
Compounding the error of omission, the decision also ignores the Constitution’s specific authority to
Parliament to alter the Constitution contained in Article 66 which states that “Subject to the special
procedure set out in article 164, Parliament may alter this Constitution.” Mr. Chang has demonstrated a
tendency to dissect and examine a single word of the Constitution – as he did in the Budget Cut Case – but
yet ignores an entire Article or two!
If that omission was bad, a statement purportedly factual was worse. On page 8, the acting Chief Justice
writes that “The articles of the Constitution having received the favourable vote of the electorate in a
referendum, represent the direct vote of the people.” That is simply not true. The 1980 Constitution was
never put to the electorate. In fact, the 1978 Referendum, the results of which were described by Professors
James and Lutchman “as among the most corrupt results ever in an election type exercise” was to remove an
entrenchment clause in the 1966 Constitution to allow a National Assembly imposed on the people to make
the 1980 Constitution.
But Mr. Chang also ignored the submission by the then Attorney General on the history of the Amendment
and the words of the Leader of the House Mr. Reepu Daman Persaud in introducing Bill 14 of 2000 which
was passed and assented to by then President Bharrat Jagdeo as Act 17 of 2000. This is what Persaud said:
“This Bill broadens the scope of democracy and removes certain powers which are considered dictatorial.” In the same
debate, Moses Nagamootoo, PPP/C M.P., said “By limiting and defining the term of the Presidency to two
terms … This is good, both for mobility and for reinvigorating of our society so that we can have this type of
approach to our politics where we cannot say we have…. the notion of a President for life.”
At the very least, the Court should have offered some explanation for not considering these words in the
light of the case of Pepper v. Hart [1993] AC 593 which permits reference, under certain circumstances, to
statements made in the legislature when attempting to interpret the meaning of the legislation.
These omissions and commission seem to be of sufficient significance as to undermine the entire ruling,
suggesting as it does that the submissions and arguments of the defendants have so little merit that they do
not even deserve an acknowledgment by the Court. Some cases of doubtful reference cited by the
applicant’s attorneys warrant extensive consideration while submissions having what seem to be of direct
relevance, do not deserve the court’s attention.

There are two cases in particular dealing with the basic features of Commonwealth constitutions which the
Chief Justice relied on in coming to his conclusions and decision. These are the Belize case Bowen v The
Attorney General BZ 2001 SC 2, and the Indian case Kesavananda Bharati v. the State of Kerala (1974) 1
SCC (Jour) 3.
Citing Bowen and Bharati, the Chief Justice imported and accepted these as applicable to Articles 1 and 9 of
the Guyana Constitution, neither of which the defendants’ counsel argued quite persuasively, were relevant.
Given the significance of this case, the Court owed a duty to address those arguments.
From Bowen, Mr. Chang wrote that the basic structure of the Belize Constitution was made up of separation
of powers, the rule of law and the protection of fundamental rights. And from Bharati, he wrote that “while
there was no implied limit to constitutional amendment, the very nature of the word “amend” meant that
Parliament could not abrogate or destroy the basic structure of the Constitution.”
Unfortunately Mr. Chang treats these two main cases rather inadequately. In fact, as Guyanese
constitutional academic and expert Dr. Arif Bulkan in an article titled The limits of Constitutional (Re)-
Making in the Commonwealth Caribbean: Towards the ‘Perfect Nation’ appearing in the Canadian
Journal of Human Rights published in 2013, Conteh, CJ identified not three but six features as forming the
basic structure of the Belize Constitution. The additional features are: (i) that Belize is a sovereign,
democratic state; (ii) the supremacy of the Constitution; and (v) the limitation of parliamentary sovereignty;
Dr. Bulkan had some interesting thoughts on the case. This is what he said:
“Moreover, having identified these so-called “basic features”, the Chief Justice provided no rationale
to support why their scope would be as far reaching as to invalidate a constitutional amendment, as
distinct from having simply interpretive value. These are not minor deficiencies, and unless addressed
they will ensure that Bowen remains an isolated experiment of a maverick judge.”
But Bulkan did not suggest that Bowen should be ignored, acknowledging that “Given the Caribbean’s
shared colonial history with India, as well as the commonality of their respective legal systems and
institutions, the concept of an unamendable core is not necessarily alien or inapplicable to Caribbean
constitutions. At the very least, these factors preclude a summary dismissal of Bowen and demand instead a
closer examination of its roots.”
Significantly, while Mr. Chang at times used language almost identical to Bulkan’s, he chose to cite a much
older publication (2002) by Simeon C.R. Mc Intosh instead of Bulkan.
But if there are questions about Bowen, Bharati is far more complicated. It was heard by a thirteen-judge
Constitutional Bench of the Supreme Court of India. It was a sharply divided verdict, by a margin of 7-6,
with eleven separate judgments set out in more than one thousand pages and expressing strongly
conflicting positions. What is now widely accepted is that the Court held that Parliament has “wide” powers,
but it did not have the power to destroy or emasculate the basic elements or fundamental features of the
constitution.
It is hard to accept that Mr. Chang really believes that Act 17 of 2000 setting term limits, a feature of an
increasing number of Constitutions, had the effect of destroying or emasculating the basic elements of the
Guyana Constitution, the only ground on which Mr. Chang could hold Act 17 of 2000 unconstitutional.

Let us now turn to some of the strictly legal issues raised in the case and specifically in relation to
constitutional basic structure. Inevitably, faced with the language of Article 90, and Articles 65 and 66 which
the Court did not address, the Chief Justice argued that Article 90 was on its face properly amended by the
National Assembly. But he then imports Bowen and Bharati, supra, positing that since that Article 90
touches Articles 1 and 9 – which in his view form part of the basic feature of the Guyana Constitution – the
purported amendment could only be done by the people in a referendum and not by any majority of the
National Assembly.
The decision correctly quotes Article 1 that “Guyana is an indivisible, secular, democratic sovereign state in
the course of transition from capitalism to socialism and shall be known as the Co-operative Republic of
Guyana.” On page 17 Mr. Chang in describing the normative characteristics of the Constitution not only
underlines the word “democratic” but in two instances in which he refers to the article, he inexplicably
inserts “and” between “democratic” and “sovereign”, which at the very least casts a subtle change to the
article.
Why he would feel compelled to do so is as interesting as his failure to acknowledge the words “in the
course of transition from capitalism to socialism”. Such loaded terms would surely have prompted him that
there is no universal definition of the word “democratic” and even less that it can mean the right to vote for
a particular individual. One would have expected in a case in which a single judge presiding in such a
landmark constitutional case would at least pay some deference to the work of the Constitutional Reform
Commission and a 100% vote of the elected members of the National Assembly. The decision reflects no
such courtesy.
Writing that “democracy is an essential or basic structure of the State of Guyana on the basis of the
Constitution”, Mr. Chang seems to take the view that there is some fixed definition of what a democratic
state is. There is no such thing. During the nineteenth and mid-twentieth century the predominant theories
were pluralism, elite theory, the new right and Marxism. From the sixties to the present day modern
pluralism has become the dominant theory, at least in liberal democracies. Whether intentionally or not, that
is not what Article 1 of the Guyana Constitution is all about. Transition to socialism is not what liberalism is
all about, even if it sits uncomfortably with Guyana’s Constitutional Court.
Was a fundamental right violated? We think not. The case Jyoti Basu v. Debi Ghosal 1982 SCR (3) 318 put it
clearly and succinctly. The “right to elect, fundamental though it is to democracy, is anomalously neither a
fundamental right nor a common law right. It is a statutory right. Outside of statute, there is no right to
elect, no right to be elected and no right to dispute an election”:
In Colombia, that country’s Constitutional Court in C – 1040 of 2005, decided that the introduction of a
clause that allows for the immediate re-election of the incumbent for only once did not amount to a
substitution of the constitutional regime and was therefore within Congress’ power to approve such an
amendment. It is puzzling that the Chief Justice would not have referred to this case in his judgment and go
on to show why it is not relevant.
Mr. Chang’s decision has drawn some strong language but the decision itself is not without its own emotive
language such as “mechanically us[ing] the procedural provision of the Constitution in isolation to subvert
the Constitution itself” and Parliament under the guise of an “alteration” diminish or destroy the
fundamentals of a Constitution from which its own power has been derived.”
Let us be clear: there is no right to vote for a person of one’s choice under the Guyana Constitution. Article
177 merely requires a party to put up a list of candidates and the electors can vote for that list or any other
list. No elector has any right democratic or otherwise – to vote for any person. What if the PPP/C does not
name Mr. Jagdeo as its presidential candidate, would Richardson bring an action against the PPP/C for
“restricting and curtailing” his democratic rights and freedoms? It seems strange that the Court could find,
as it does, that a right which does not exist under our Constitution can be curtailed.
At best, we would have thought, it is Jagdeo and any other similarly placed persons who could be
entertained by the Court on that issue. And we would have liked the Court to address the question by
examining how the USA which has term limits and birth requirements is less democratic than Guyana
whose Court has ruled that alterations to introduce those very measures are unconstitutional.
One cannot help but reflect on the irony and question the wisdom of a one person Constitutional Court
when that same Constitution embraces a system of checks and balances. The preferred number of members
of the Constitutional Court in most countries appears to be nine with none of those looked at having less
than four. Current Attorney General Mr. Basil Williams has given notice of appeal against Mr. Chang’s
decision. The question of a third term is far from resolved.

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