The determination of our learned C.J. is irretrievably flawed and is likely to be overturned on appeal

DEAR EDITOR, On the 9th day of July, 2015 our learned Chief Justice delivered his judgment in Cedric Richardson v Attorney General and Raphael Trotman. The judgment is arguably tendentious, occasionally pleonastic, bereft of sustained rationality, strangely and curiously, not to mention inexcusably, eschewed the application of the required rule of statutory interpretation in construing the provisions of Article 1 of the Guyana constitution, given the concatenation of genus-describing attributes employed therein. The gravamen of the issue failing to be determined in Cedric Richardson v Attorney General and Raphael Trotman was the extent and nature of the power of Parliament to amend the constitution of Guyana. In effect, was that power of amendment definitively and exhaustively prescribed in procedural Article 164 of the Guyana constitution regulating its alteration? Compare in this context Article 69 of the Belize constitution and Article 368 of the Indian constitution. Or were there substantive articles of these constitutions imposing constraints, expressly or impliedly, on the power of Parliament to amend them. Consider relevant dicta attributed to Conteh C.J and Sikri C.J in Belizean and Indian cases cited below. Of equal relevance, where the constitution has been expressed to constitute the supreme law, as in, Article 8 of the Guyana constitution, was there peremptory preclusion of curial intervention to examine the limits to Parliament’s power of amendment, if the constitution so determines. In Cedric Richardson v Attorney General and Raphael Trotman the complainant alleged that Act No.17 of 2001 purporting to amend Article 90 of the Guyana constitution and disqualifying a person from seeking election more than twice as President of Guyana, diminished and restricted his democratic right of choice, and, having not been approved by the electorate in a referendum as required by Article 164(2) of the Guyana constitution, was constitutionally invalid, void and of no legal effect. On the contrary, however, the Proviso of Article 164(2) expressly prescribed that there was no need for approval by referendum of the relevant bill which was passed by 2/3 majority vote and did not alter any provisions of Articles 1 or 9 of the Guyana constitution. Act No.17 of 2001, therefore, in my respectful opinion did not require approval by referendum to establish its constitutional validity and efficacy, as our learned Chief Justice wrongly determined. Relevant common law jurisprudence, however, appears to advise that the limits of the power of Parliament to amend the national constitution are not prescribed exhaustively in the relevant provisions for amendment and that any such amendment to be valid may not compromise the “normative requirements” of the constitution as opined by Conteh C.J of Belize in Bowen v Attorney General (B.Z. 2009 SC 2). Or in the characterisation of Sikri C.J of the Supreme Court of India, “does not enable Parliament to take away fundamental rights or to completely change the fundamental features of the constitution so as to destroy its identity” (Kesavada Bharati v State of Kerala). However, such amendments in the opinion of Sikri C.J may abridge fundamental rights in the public interest (op. cit. para. 504). In Cedric Richardson v Attorney General and Raphael Trotman our learned Chief Justice opined: “There can be no doubt that Parliament could have altered Article 90 by 2/3 majority of all the elected members of the National Assembly. But in so far as those alterations diminished and further restricted democratic sovereignty which, under Article 164(2) was procedurally protected by the requirement of a referendum for its legal validity and efficacy, the holding of a referendum was required”. In my respectful opinion, however, the aforementioned dictum cannot be reasonably construed as constituting the compelling culmination of a process of informed and credible juridical analysis. In the first place, the term “democratic sovereignty” employed by our learned Chief Justice in terms of identifying the core values of the Guyana constitution is at worst undecipherable and at best a juridical oxymoron which defies rational analysis. Secondly, perusal of the originating summons filed by the complainant alleged that Act No.17 of 2001 which amended Article 90 of the 1980 constitution restricted and curtailed the democratic rights and freedoms of the electorate “by purporting to eliminate from the executive Presidential candidature a person who has been re-elected as executive President…” By ineluctable inference, therefore, Act No.17 of 2001 by allegedly infecting Article 1 of the Guyana constitution, required the approval of the electorate by referendum for its constitutional validity; and this despite the proviso in Article 164(2) which reads “ Provided that if the bill (containing the proposed Act No.17 of 2001) does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the Assembly by the votes of not less than two thirds of all the elected members of the Assembly it shall not be necessary to submit the bill to the vote of the electors”. At this stage of the analysis it is important to note that the said bill did not purport to alter any of the provisions of Article 1 or 9 which were included in subparagraphs 164(2) (a) and it was approved by 2/3 majority vote of the Assembly. Consequently, on a literal interpretation of the proviso mentioned in Article 164(2) Act No.17 of 2001, having not altered any of the provisions of Article 1 or 9 and having been approved by 2/3 of the Assembly was not required, as wrongly determined by the learned Chief Justice, to secure the approval of the electorate by referendum in order to establish its constitutional validity. Nor was it established or even alleged by the complainant that Act No.17 of 2001 abrogated or destroyed fundamental rights or normative requirements constituting the core of the Guyana constitution as determined by Conteh C.J and Sikri C.J. Our learned Chief Justice, however, appeared to have assimilated democratic voting rights of the Guyana electorate to normative requirements of the constitution articulated by Chief Justice Conteh of Belize and to fundamental features of the constitution exemplifying its core identity in the characterisation of Sikri C.J of the Supreme Court of India. If this assimilation of the aforementioned terms were juridically feasible our learned Chief Justice might have been marginally exonerated in finding that Act No.17 of 2001 required approval by referendum for its constitutional validity and efficacy. However, in my respectful opinion our learned Chief Justice’s attempt at assimilation of these semantically irreconcilable attributes was not juridically feasible because the “normative requirements” mentioned by Conteh C.J, to wit, the separation of powers, protection of fundamental rights and the rule of law, all of which, significantly in the present context, spoke to the attributes of a constitution of a legal and political collectivity and not, as our learned Chief Justice wrongly determined, to the discrete political rights of citizens of a democracy. Similarly, Sikri C.J of the Supreme Court of India in addressing the amending power of the Parliament was by necessary implication concerned with identifying attributes of the state as a political collectivity. In the premises, reliance by our learned Chief Justice on the aforementioned dicta of Conteh and Sikri to find for the unconstitutionality of Act No.17 of 2001 was juridically misconceived.  Our learned Chief Justice should have applied the eiusdem generis rule of statutory interpretation to construe democratic in Article 1 of the Guyana constitution (Francis Bennion, Statutory Interpretation, 2002, pp.1054 ff.). More importantly, the democratic rights of the complainant which, in the opinion of our learned Chief Justice, were diminished and restricted, may, in the informed opinion of Sikri C.J,  be reasonably abridged in the public interest but not abrogated (op. cit para. 504). Equally relevant to note is the fact that although Act No.17 of 2001 was determined by our learned Chief Justice to have diminished and restricted the democratic rights of the electorate, it was not determined nor even alleged to have altered any of the provisions of Article 1 as required by the Proviso of Article 164(2) so as to preclude exemption from affirmation by referendum in establishing its constitutional validity. In my respectful submission, therefore, the determination of our learned Chief Justice in Cedric Richardson v Attorney General and Raphael Trotman is irretrievably flawed and is likely to be overturned on appeal, given among other deficiencies, an arguably perception of bias by reference to the relevant provisions of the Bangalore Draft Principles and the Latimer House Guidelines on judicial conduct. In the ultimate analysis our constitution, the supreme law, relieved Parliament of the need to secure approval of Act No.17 of 2001 by referendum. And where the constitution has been expressed to be the supreme law as in Guyana, and has pronounced clearly, definitively and conclusively on an issue, as in the Proviso of Article 164(2) of the Guyana constitution, no judge should dare to tread contrarily lest judicial determinations be unwittingly construed as trumping constitutional supremacy. In the informed submission of Durga Das Basu, the eminent Indian constitutional law expert,   where the constitution excludes specified questions from curial scrutiny, “the courts lose their jurisdiction to entertain these questions altogether because they have no power to override the constitution and the questions, accordingly, become non-justiciable.” (Commentary on the Constitution of India, 5th Edition, 1965 (Calcutta: SC Sankar and Sons (Ltd), at p.338.)

Professor Justice Duke Pollard, Department of Law, University of Guyana.