The Constitution is clear.

February 26, 2017 Source

Dear Editor,

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.

Yours faithfully,

Lincoln Lewis

Original Post

Not sure why the focus is just on term limits.  Hundred of thousands of overseas based Guyanese are also affected by this Amendment.  I filed this blog on SN, not sure if they will post it.

Good letter.  Title 1 deals with protection of fundamental rights not as stated “Title 1 of the Constitution expressly states what are citizens’ “Fundamental Rights and Freedoms.”

Article 40 is specific to fundamental rights and nowhere is there a definition of what fundamental rights are.  To argue that running for President as a natural born Guyanese is a privilege and not a fundamental right is absurd.  Of course the parliamentarians want to make it a privilege.

Article 90 is just not about a two term limit it is also affects hundreds of thousands of overseas based natural born Guyanese.   To argue that a change in the constitution that affect hundreds of thousands of people is not a question of fundamental rights is preposterous.

Here are pertinent sections of Chang’s ruling:

While it is true that no provision of the Constitution of Guyana is immutable or immune from alteration, it would not be legally possible for a majority or 2/3 majority of all the elected members of the National Assembly to alter a provision of the Constitution in diminution or dilution of the normative characteristics which define and determine Guyana as an indivisible, secular, democratic and sovereign State.  Otherwise, a majority or 2/3 majority of the elected members of the Assembly would be supreme and not the Constitution itself so that the Constitution itself could be denuded of its essential normative character by the National AssemblyOne cannot mechanically use the procedural provision of the Constitution (Article 164) in isolation to subvert the Constitution itself.  That would be possible only with the approval of the electorate.

 

The court therefore holds that Act No. 17 of 2001, in so far as it seeks to trench on and to dilute the pre-existing democratic rights of the electorate to elect as President a person of their own choice, needed a referendum and is invalid and without legal effect for reason of non-compliance with Article 164 (2) (a) and/or repugnancy with Article 1 (democratic society) and Article 9 (sovereignty belongs to the people) – both of which Articles require a referendum for any alteration.

 Article 90 (2) and (3) purports to render a person who has served as President for at least two terms (whether consecutive or not) ineligible for election or re-election as President.  There can be no doubt that the purported effect of the alterations to Article 90 is to render persons previously qualified or eligible for Presidential candidature as unqualified or ineligible therefor. Among these would be perhaps hundreds of persons who have acquired citizens of Guyana by registration and perhaps thousands of non-resident citizens of Guyana by birth or descent.

This whole thing started with Cedric Richardson's petition in court. I don't know who the faceless Cedric Richardson is, his age, occupation, etc. Who is paying his lawyer's fees? Ralph Ramkarran says the PPP as a party supports presidential term limits. Obviously someone in the PPP disagrees strongly and may be backing Cedric Richardson.

Gilbakka posted:

This whole thing started with Cedric Richardson's petition in court. I don't know who the faceless Cedric Richardson is, his age, occupation, etc. Who is paying his lawyer's fees? Ralph Ramkarran says the PPP as a party supports presidential term limits. Obviously someone in the PPP disagrees strongly and may be backing Cedric Richardson.

Why people always think that there has to be a quid pro quo for any decent action by a person?  Why couldn't Richardson be just a concerned citizen such as the Guyanese woman who filed the court case in Britain for the Brexit issue??

I don't know if you were here around 1999-2000 when we were debating this issue on this site.  Here is a bit of my personal "actions" on Article 90 issue.

In 1999 when it looked like the Constitution Reform Commission was going to recommend an ONEROUS residency requirement for running for President I filed comments by email that there should be no such requirements and that people should decide who they want to vote for President. I also wrote many letters in the media and had back and forth discussion with people like Rupert Roopnaraine and Freddie Kissoon whose main argument was that only “people who stayed and fight” should be able to run for President.

When Article 90 got enacted I asked my brother Vic Puran to challenge it in court because the right of overseas based Guyanese were being diluted by the act of members of Parliament and that it should be the people who should decide. Vic did not want to challenge it at that point for reasons I will not state here. However, couple years afterwards Vic told me that it is likely that Article 90 would be voided if challenged. He said he would challenge it if need be.  You can make your own conclusions, but Chang was Vic's best friend. I did not ask him if the talked to Chang about it.

It was just be a matter of time for Article 90 to be challenged so it is not surprising that a citizen challenged it in 2014 when the PPP was still in power. Don't expect the 2/3 who got together to approve Article 90 to challenge it. 

Article 90 also disqualifies from the presidency candidates who have not been resident for 7 years prior to nomination

Dear Editor,

I believe that Mr Lincoln Lewis is one of the most unbiased contributors to your letters column which is why I pay special attention to his letters.  In his letter published on February 26, under the title ‘The Constitution is clear’ he tried to bring clarity, as he sees it, to the debate surrounding the Appeal Court’s decision to uphold retired Chief Justice (ag) Ian Chang’s ruling on changes to Article 90 of the Guyana Constitution.

Editor, I respectfully disagree with some of the arguments raised by Mr Lewis in his letter.  He stated that “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.”

It is in Chapter III, aptly named ‘Fundamental Rights and Freedoms of the Individual’ where Article 40 (1) states that “Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, ignorance and want. That right includes fundamental rights and freedoms of the individual.”

There is no attempt in Article 40 to define what fundamental rights are.  In fact, it would be impossible to have an all-encompassing definition of fundamental rights.

It is Article 40(2) which speaks to Title 1, which Mr Lewis referred to.  Article 40(2) clearly states that the provisions of Title 1 shall have the effect for the purpose of affording protection to an individual’s fundamental rights.  So Title 1 is about the protection of fundamental rights, not about providing an all-encompassing definition of fundamental rights.

Mr Lewis’s argument that “being a president is not a right, it is a privilege” is reasonable, but that is not the point of contention here.  In any case, it will be the electors who will be doing the hiring and firing of the President to use Mr Lewis’s example that a janitor cannot expect to be hired as a mechanical engineer.  Anyway, the point in contention is being able to run for president under Article 90 before it was voided. It is unfortunate that media coverage gives the impression that changes to Article 90 deal only with the ability to run for a third term.   Changes to Article 90 make overseas-based natural born Guyanese and Guyanese students studying in foreign lands for a period over 4 years second-class citizens.  This is an insult to the dignity and a dilution of the fundamental rights of these affected Guyanese.

For those not familiar with all the changes to Article 90, Article 90(1)(b) requires 7 years of continuous residency in Guyana just prior to the elections before a natural born Guyanese citizen can run for president. I am not familiar with any major democracy that has such an onerous requirement.  The USA has a 14 years residency requirement, but it is for any period of the natural born person’s life, not for a continuous period just prior to an election.

In addition, potentially brilliant Guya-nese who have no intention of emigrating would also be victims of the changes under Article 90(4)(b) where they stand to lose their “continuity of residence” if they study abroad for more than 4 years.

In his ruling retired Chief Justice (ag) Chang noted that “It does appear that, although the challenge of the plaintiff is only to the constitutionality of Article 90 (2) and (3), Article 90 (1) (a) and (b), as altered by Act No 17 of 2001, also purports to disqualify for Presidential candidature citizens of Guyana by registration and citizens of Guyana not resident in Guyana on the date of nomination and for at least 7 years immediately preceding that date.” Consequently, I would expect that any challenge brought to the Caribbean Court of Justice will have to address these aspects of the ruling also.

I wish to state that I support a two-term limit, but I would never support an amendment that treats me like a second-class citizen.  Let’s not forget that these potential second-class citizens are the ones that kept the Guyana afloat through the barrel economy and remittance, which is Guyana largest industry to date.

It is interesting to note that the PPP and PNC can come together to kill competition from potentially half of the Guyanese populace.  Unfortunately, they cannot come together to solve Guyana’s many problems.

Yours faithfully,

Vijay Puran

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