Dear Editor,
At the end of the day, the Chief Justice’s ruling is a single judge’s analysis, subject to correction on appeal. The gaze should now shift to the present government to see if it attacks the president-for-life repercussion of this judgment by either appealing in the hope a higher court rejects the CJ’s judgment or ultimately sending the matter to a referendum if the appeals fail. This judgment’s president-for-life implication does not potentially benefit Mr Jagdeo alone; it also potentially benefits Mr Granger or Mr Ramotar or anyone else in the future. My views here are those of a mere layman, not a lawyer or constitutional expert.
The judgment’s overarching theme of democratic sanctity, preservation and advancement is valid, sound and necessary. Democracy has to be the backbone of our entire system. There is no other way, not with our history of slavery, indentureship, colonialism and dictatorship, elected and unelected.
The CJ recognizes two approaches to changing the entrenched provisions of the constitution. These are the referendum and the 2/3 legislative majority vote. The CJ contends is that the 2/3 majority can only alter the entrenched provisions of the constitution in a fashion that expands democracy. The CJ ruled that the 2/3 majority cannot alter the constitution in a manner that restricts its democratic character and if those changes are proposed, only the people through a direct referendum can do so. The CJ states this is to prevent one arm of the state (the legislature) from dominating other arms of the state without direct involvement of the vote of the people. It is also in keeping with the inherent need to preserve the democratic character of the state which is an entrenched provision in Article 1. I agree with the Chief Justice that referendums should be the preferred route for altering entrenched provisions of the constitution in cases where there is a risk of a democratic denial of those provisions. It is democratically valid reasoning that must be supported, since the areas of the constitution requiring referendums are sparse. Further, many critical elements of the state such as the independence of the judiciary and the rights provisions can be diluted without a referendum by the 2/3 legislative majority. That cannot be allowed to occur, particularly with a backward electoral system that can be manipulated to create illegal 2/3 legislative majorities through rigged elections. It must be noted that the CJ missed the point that in most cases, the majority of the legislature (unless there is a minority government) is in reality dominated by the executive.
Where the judgment is flawed is in its conclusion. Even if the reasoning is probably correct, the conclusion is flawed. Term limits do not dilute the democratic character of the state or the presidency. Term limits are now an essential part of presidential democracies. A decade of rule for any individual in a small nation state is more than sufficient. The most powerful economy and nation in the world, the USA, has an 8-year presidential term limit. Democracies have all manner of limits. There are limits to the life of parliament; to executive power through elections, and to the holding of offices as Articles 158, 197, 203, 204 and 211 impose age limits on the length of tenure of the Clerk of the National Assembly, judges, the DPP, the Auditor General and the Commissioner of Police. Historical experience from PNC and PPP governance since independence has demonstrated the perilous ordeal that would follow a lack of term limits.
Clearly, the state’s democratic character and ideal cannot be attained or maintained if term limits are not embraced. The historical evidence has been abundantly clear in this regard. Thus, a 2/3 legislative majority, derived from different political parties sent to the legislature through free and fair elections and representing at least 66% of the electorate (98% in this case), can validly and constitutionally vote for the imposition of term limits without the need for a referendum because that vote is one that widens democracy and strengthens political choice and renewal. If the 2/3 majority vote was to remove term limits then the Chief Justice would have been correct in ruling that the vote is invalid in the absence of a referendum by the people, since the removal of term limits is an act of democratic dilution. The judgment also elevates the role of the judiciary to where it should have been all along: as an entrenched pillar of the state alongside the legislature and the executive.
Referenda are always preferred to 2/3 majority legislature votes where the vote concerns altering entrenched provisions in a fashion that curtails democracy. In our list and recall system and with internally corrupt political parties, the risk of the subjugated MPs voting out of party interest, self-preservation or under duress and in doing so, voting against the interest of the people is higher with a two-thirds legislative vote than with a referendum. It is easier for party leadership to suppress or purchase the loyalty of 65 persons than it is to suppress or buy 750,000 persons. The current battering of the Cummingsburg Accord by its signatories and the rise of Bharrat Jagdeo to Opposition Leader are irrefutable proof of these very risks. Even national unity governments can become one-party dictatorships and use legislative super-majorities to the detriment of the nation without recourse to the people by referendum. Indeed, referenda can deliver the tyranny of the majority but Guyana’s changing demographics and the 2015 election result confirm that the tyranny of the majority, usually an ethnic exercise, is very difficult to achieve now.
Referenda typically deal with issues which generally move the debate away from racial or party motivations. Parties may try to sway referenda voters but ultimately it is an issue-based vote. Finally, unlike elections with fixed dates every five years, referenda can be triggered virtually every week to challenge the democratic validity of an illegal government or to move the nation along democratically. All it takes is a simple majority National Assembly vote to trigger a referendum. For these reasons, it is important to preserve referenda as the primary tool for constitutional change of entrenched provisions of the constitution. However, in this particular case, a 2/3 legislative majority is sufficient to impose term limits as the act by itself is one that expands the democratic character, safety and security of the state. In parting, it is unfortunate the CJ delivers sound reasoning but ends up at the wrong conclusion.
Yours faithfully,
M Maxwell
