February 26, 2017 Source
The decision by Appeal Court Justices Chancellor (ag) Carl Singh (ret’d) and Justice BS Roy, with Chief Justice (ag) Yonette Cummings-Edwards dissenting, to uphold retired Chief Justice (ag) Ian Chang’s ruling that Bharrat Jagdeo can run for a third term, despite the Guyana Constitution’s requirement to the contrary, must spark a spirited debate about and acquaintance with this instrument , including through the education system.
The Constitution is the nation’s supreme law. It guarantees citizens’ rights and freedoms, lays out the objectives of the nation, and outlines the system of government to manage the people’s affairs. These principles are usually referred to as the spirit and intent which guide the formulations and sectionalising of articles therein and laws therefrom. It is from this premise we must start in understanding what is required of us.
There is disagreement with petitioner Cedric Richardson’s contention that the ‘third term’ case is similar to the 1998 Esther Perreira Election Petition, before the High Court, that led to the vitiation of the 1997 General and Regional Elections. The Constitution expressly prescribes the right and eligibility to vote, which do not include presenting an identification card as a qualifying condition to cast a ballot, which was a primary contention in that petition. What Richardson is asking the court to determine is Jagdeo’s eligibility to run for a third term when such is forbidden in the Constitution.
Article 90 (2) expressly says “A person elected as President after 2000 is eligible for re-election only once.” As objectionable as some will find Mr Jagdeo treating the court’s ruling as though it is about him and not the foundation of our legitimate existence, sight should not be lost of what is at stake for the nation and its people.
Every citizen, providing he/she meets the requirement to be eligible to be president, once the electors grant him or her that privilege, can so become. Being a president is not a right, it is a privilege and this privilege is not absolute, it operates within specific guidelines and expectations as outlined in the constitution, laws, time-honoured principles, universal declarations, international conventions and charters.
The contentious Articles 1 and 9 of the Constitution are clear. The former addresses the sovereign state and its name. The latter places sovereignty in the hands of the people “who exercise it through their representatives and the democratic organs established by or under the Constitution.” Article 59 which addresses the qualifications and disqualifications of the electors (ie voters) are expressly made clear in Article 159.
Enjoying the right to vote as a citizen based on the sovereignty vested in Article 9 does not supersede or nullify Article 90 (2). The right to vote does not mean that a person can be elected without satisfying constitutional requirements. Just as the Constitution sets out disqualifying conditions for persons to be elected members of the National Assembly (Article 155) it does likewise for being elected president.
Title 1 of the Constitution expressly states what are citizens’ “Fundamental Rights and Freedoms,” and nowhere among these articles is it stated that being elected or contesting the presidency is a fundamental right. As such any arbiter who concludes that an individual’s fundamental right is being denied if he is barred from contesting the presidency has to rethink that position.
Further, even fundamental rights and freedoms, which are premised on universal declarations and international conventions and charters, carry qualifying conditions. The fundamental right to free choice of employment (Article 149A) does not translate to a janitor thinking that when he applies for the job to be a mechanical engineer, in as much as he does not possess the required qualifications for the job, that he is so entitled under the Constitution. The same principle applies to being elected president for a third and any subsequent term.
Article 66 ‘The Alteration of this Constitution’ expressly states, “Subject to the special procedure set out in Article 164, Parliament may alter the Constitution.” Article 164 the ‘Procedure for altering this Constitution’ says at paragraph (2) that any alteration/amendment being made to any articles that fall in subparagraph (a) which are 164, 1, 2, 8, 9, 18, 51, 66, 89, 99 and 111, requires the vote of the electors (ie a referendum). Subparagraph (b) which includes Article 90 can be altered by the National Assembly “by the votes of not less than two-thirds of all the elected members…”
Article 90’s instruction that “any person elected as President after 2000 is eligible for re-election only once” means that person cannot be granted a third term. The clever manipulation in pronouncing on Article 164 by ignoring the intent of the semi-colon which appears in subparagraph (a) after the list of articles that requires a referendum is unfortunate. The semi-colon used in this instance is clearly intended to show the difference between subparagraph (a) and (b). The Parliament, consistent with the power vested in its members, opted to amend the permissible article by not only meeting the minimum requirement of “not less than two-thirds” but the elected members voted unanimously.
Amendment of Article 90 was facilitated by national widespread consultation. Willing participants in the society, including individuals, political parties, civil society, and the trade union community were allowed their inputs. It must be recalled the spirit and intent behind the alteration was to prevent the sense of permanency to the office, the notion of entitlement to it, and the need to facilitate diversity of the office holder. These were publicly made known as having informed its conceptualisation.
These positions were supported by the PPP/C and the Bill to alter said article was assented to by then President Bharrat Jagdeo.
Though the election to be president comes through a political party, a political party is not an abstract entity. It comprises a List of Representatives, from which persons have to be eligible for the positions they are likely to fill. Here is where the political party cannot be looked at in isolation from the names on the List of Representatives and the eligibility of each candidate to fill the position he or she is placed in.
This matter is now set to go before the Caribbean Court of Justice. This society must demand the appellant do thorough homework and submit an incisive brief within the legally stipulated timeframe. This issue is not about Jagdeo, Basil Williams or Raphael Trotman; it is about the nation’s supreme law and protecting and advancing its integrity. The Government of Guyana, which represents the interest of the citizens, must have this as its foremost interest.