One of the few issues of agreement between all political parties in Guyana after 1992 was term limitation for the President. It was proposed by the Constitutional Reform Commission in 2000 and subsequently enacted by Act No. 17 of 2001. The PPP had earlier proposed a limitation of two terms to the Special Select Committee on Constitutional Reform established by the National Assembly after the 1992 elections. But its work came to a premature end with the dissolution of the National Assembly for the 1997 elections.
The Constitution Reform Commission was established in 1999 pursuant to the Herdmanston Accord. This was signed by the main political parties in an effort to restore calm after continuing disturbances following the 1997 general elections. All parties and interests represented on the Constitution Reform Commission supported the limitation on presidential terms and it was a major constitutional innovation for Guyana.
On August 11, 1999, while the constitution reform process was in full swing, Bharrat Jagdeo succeeded to the presidency upon the resignation of Mrs. Janet Jagan. Until then there was not a single voice in the PPP in opposition to the presidential term limitation which had already been decided and which had already been put to the Constitution Reform Commission by a delegation led by then General Secretary Donald Ramotar.
After all of this had happened, Feroze Mohamed and Gail Teixeira, neither of whom had hitherto made any objection to presidential term limits, raised an objection to it in the executive committee of the party and sought to revisit the issue. They argued that the choice of president is a matter for the electorate and suggested that the party should change its position. While the suggestion was quickly dismissed, it would not surprise anyone that the assumption of office of Dr. Jagdeo and the effort to persuade the party to change its mind about the term limitation were linked. Since then the issue of term limitation for the president has never been far from the headlines.
In 2010 a large billboard appeared along with flyers, buttons and other paraphernalia promoting a third term for Dr. Jagdeo. The effort did not succeed after Donald Ramotar publicly voiced his objection. During last year, after an article I had written, Dr. Luncheon assured the Guyanese public that the Government supports the constitutional limitation on presidential terms and believes it to be lawful. Dr. Jagdeo has also repeatedly assured the Guyanese people that he is not interested in a third term.
Act No. 17 of 2001 amended article 90 of the Constitution to provide for term limitation and other qualifications for the president, pursuant to the recommendations of the Constitution Reform Commission. Amendments can be made to the Constitution under article 164 by a two-third majority for some articles and a two-third majority together with a referendum for others. Act No. 17 of 2001 had received a two-third majority in 2001.
In Richardson v Attorney General and Trotman, decided on Thursday July 9, the Chief Justice ruled that notwithstanding the provisions of article 164, Act No 17 of 2001 in so far as it ‘dilutes’ the democratic rights of the electorate to elect a president of its own choice, needed a referendum and therefore violates article 164. The Chief Justice argues that the Constitution cannot be subject to amendment by addition and Act 17 of 2001 adds new provisions to article 90 relating to the qualifications for president. The other main reason given by the Chief Justice is that a two-third majority cannot alter a provision of the Constitution in diminution of its ‘normative’ characteristics as providing that Guyana is an indivisible, secular, democratic and sovereign state. He identified the right of a citizen to elect a president as such a provision and held that the amendment affected such a right. The decision clears the way for a third term for Dr. Jagdeo.
In a letter to the Stabroek News of Saturday July 11, Professor Justice Duke Pollard disagreed with the opinion of the Chief Justice saying that it was ‘wrongly determined,’ ‘irretrievably flawed’ and is likely to be ‘overturned on appeal.’ Professor Justice Pollard, a retired judge of the Caribbean Court of Justice, focused on the soft underbelly of Chief Justice Chang’s decision. He criticized the Chief Justice’s characterization of the imposition of term limits on a president and, consequently, the right of the Plaintiff, or any citizen of Guyana, to elect a president of their choice as being a ‘normative requirement’ affecting ‘democratic sovereignty.’
The inadequate synopsis of Chief Justice Chang’s decision and Professor Justice Pollard’s letter, reduced to two paragraphs above, do not do justice to their arguments. But the issue is of such fundamental importance to our political system and to constitutional rule that it is most important that they be highlighted to stimulate public interest.
It would have been tempting to suggest that whatever the outcome of appeals, the matter should be definitively dealt with during the process of constitutional reform. But while appeals in this case are pending and Dr. Jagdeo sniffs at a potential return as president, the PPP is not going to be interested in any kind of reform. It never was anyway.