Dear Editor,
Mr Maxwell Edwards has thrown into the works of the Chief Justice’s ruling on term limits two additional legal spanners (SN, July 21). First, he argues that Article 1 of the Guyana Constitution is so broadly and vaguely written as to be unenforceable (non-justiciable). I would add that even if a court bravely takes up the interpretation challenge, the element of doubt would still be significant enough to allow the constitutionality of the statute to stand as a reasonable interpretation.
Secondly, Mr Edwards points to Article 177(4), which states that on questions linked to the election of our president, the Court of Appeal, not the High Court, has primary and final jurisdiction. I am not sure the ruling can now survive this mechanical damage.
I write mostly to respond to Mr Edwards for gently rapping my knuckles for purportedly suggesting (in SN and KN, July 12) that the constitution reform process in 1999 amounted to a referendum. That was definitely not my intention. I was emphasizing that, even on the very terms of the ruling, given that the referendum (or entrenchment) test depends on whether Act 17 of 2001 promotes or undermines democracy, then the amendment should pass, as the people did indicate during the 1999 reform process (inclusive of a 2/3 parliamentary vote) that the idea of term limits promotes democracy. The court therefore erred to overlook and overturn the clear will of the people with its own opinion of what hurts or helps democracy. Thus, to use Mr Edwards’ terms, the “desirability” of term limits (formally and properly expressed in the legislature during the CRC process) makes the amendment constitutionally valid, following the structure of the court’s logic.
Mr Edwards in his letter alerts us that different judges may have different notions about the width and generality of “democratic” in Article 1. I contend that enough doubt accompanies these subjective and value-laden ideals that courts should avoid adjudication altogether, either for the unenforceability of these ideals (Mr Edward’s point) or for their constitutional ambiguity (should the accepted doctrine of “constitutional doubt” apply in our jurisprudence).
For clarity and safety, what is meant by democracy and the other sweeping constitionalized goals and ideals (such as those in the preamble and in Articles 13 to 15) is a matter wisely and correctly thrown back into the political process. The judiciary should not be duped into believing that while some basic democratic norms (such as an independent judiciary and a free press) are widely accepted, this consensus permeates the debate over more nuanced and complex issues.
In closing, I wish to touch on a point peripheral to the validity of the ruling.
It concerns the sequential words “democratic” and “sovereign” that come before “state” in Article 1. I have to side with Professor Justice Duke Pollard, in that the words may not be intended to refer to “democratic sovereignty” or “democratic sovereign”, even if such a concept existed.
The words, in my view, are separate adjectives describing state, so that Guyana is a democratic and a sovereign state. Sure, the possibility exists that “democratic sovereign” is being used synonymously with popular sovereignty (ultimate authority to the people), an idea captured in Article 9. But the text more likely suggests the meaning to be national sovereignty (boss on one’s own turf), an ideal of such great importance that Article 1 would be the place for it.
Yours faithfully,
Sherwood Lowe
