Dear Editor,
Careful analysis of the decision of the honourable Ian Chang, Chief Justice (acting), does appear to confirm that our learned Chief Justice (acting) reached his determination in Cedric Richardson v Attorney General of Guyana & Raphael Trotman by a finding that Act No. 17 of 2001 was not exempted from the requirement of a referendum to establish validity by the proviso in Article 164 of our Constitution. Consistently with this determination, the honourable Ian Chang submitted as follows: “Since the alterations effected by Act No. 17 of 2001 to Article 90 also dilute and diminish democratic sovereignty (whatever that may mean) under Articles 1 & 9, the holding of a referendum was required to achieve legal validity and efficacy. None was held.”
In the opinion of the honourable Chancellor (acting) who unreservedly concurred in the finding of the Chief Justice (acting): “The legislatures under the Caribbean constitutions although extremely important, cannot, as Parliament can in the United Kingdom, claim superiority over the other two branches of government. Caribbean Parliaments are not at liberty to legislate whatever or however they see fit without having regard to the limits enshrined in the constitution which ultimately have to be construed and guarded by the judiciary.”
In effect, given the role of the judiciary as guardian of the Constitution, this intractable issue appears to resolve itself into the aspirational concept of judicial supremacy notwithstanding the express provisions in the Constitution designating this instrument as the supreme law. As concerned the construction to be applied to “democratic” in Article 1 of our Constitution the Chief Justice (acting) determined it to mean the disaggregated discrete rights of the electorate including the right to elect the President and which in his submission could not be diminished or diluted without a referendum. In concurring in this opinion the Chancellor (acting) determined that “[t]he constitutional elements of sovereignty and democracy are not issues the Court can likely ignore. These are matters that touch the constitutional entitlements of our people. The Court must be prepared, and indeed it is the duty of the Court to ensure that the constitutional entitlements of the people are not eroded. A restrictive interpretation of the concepts of sovereignty and democracy, limiting them as being attributes of the state, without reference to the people goes against the grain of the approach to constitutional interpretation advocated by jurists in the region and to which I referred earlier in my judgment.”
Contrast in this context the approach to statutory interpretation divined by Francis Bennion, a leading exponent of constitutional interpretation in the international legal fraternity: “A statutory term is recognised by its associated words. The Latin maxim noscitur a sociis states this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings. While of general application and validity, the maxim has given rise to particular precepts such as the ejusdem generis principle and the rank principle.” (Frances Bennion, Statutory Interpretation, 4th ed, p 1049)
Undoubtedly, the Constitution is a statute of inordinately peculiar significance and as determined in the celebrated case of Collymore v Attorney General: “No one, not even Parliament can disobey the constitution with impunity. The constitution is therefore the ultimate source of power and authority.” (R M Belle Antoine, Commonwealth Caribbean Law & Legal Systems, at p. 98) And in the authoritative submission of the internationally recognised Durga Basu, where the Constitution has definitively, decisively and conclusively determined an issue, curial intervention is not to be entertained.
In my respectful submission the construction applied by the Chancellor to the term “democratic” in Article 1 is materially dysfunctional and egregiously flawed if only by reason of the generally accepted rule of statutory interpretation enunciated by Francis Bennion above and encapsulated in the maxim noscitur a sociis. This maxim has given rise to particular precepts such as the ejusdem generis principle and the rank principle. In this context, let me hasten to acknowledge with appreciation that by reason of Article 5 of the Interpretation and General Clauses Act of Guyana the ejusdem generis principle has been abolished in Guyana, which was drawn to the national attention by the erstwhile Attorney General. However, what is important to bear in mind for present purposes is that the abolition of this derivative principle leaves essentially unimpaired the original principle of statutory interpretation from which it is derived.
In the ultimate analysis, therefore, it follows as a matter of ineluctable inference that the term “democratic” must be construed in the same manner like the surrounding terms “indivisible”, “secular” and “sovereign”, all of which speak undeniably to a unified political entity in diametrical opposition to the Chancellor’s (Acting) concept of “constitutional entitlements of the people” which are not to be eroded and must be construed to comprehend, among other things, the right of electors to elect a President. But, needless to say, this interpretation of “democratic” must be seen to accommodate a construction that patently goes against the generally accepted construction in the international legal fraternity and enunciated by Francis Bennion. And in the premises, the interpretation of choice is between that of the honourable Carl Singh, the honourable Chief Justice Chang (acting) and the leading authoritative jurist Francis Bennion.
To conclude, Act No. 17 of 2001 does not offend or infect either Article 1 or Article 9 of our Constitution and is in full compliance with the provisions of the proviso of Article 164 of this instrument. Consequently, its validity or constitutionality does not depend on the favourable outcome of a referendum as posited by the aforementioned learned judges of the Guyana Supreme Court.
Before terminating discussion on this issue it may be useful to remind the reader that in his judgment the Chief Justice (acting) relied heavily on the relevant dicta of Chief Justice Conteh of Belize in the aborted Bowen v Attorney General and the judgment of the learned Chief Justice Sitri in Kessavada Bharati v Attorney General of India. However, Chief Justice Conteh in his relevant determination had identified the separation of powers doctrine and the rule of law principle as constituting the normative requirements of the Constitution, both of which appear to be in compliance with Chief Justice Sitri’s “basic structure” doctrine of the constitution. Indeed, semantically, it is virtually impossible to construe the surrounding terms of “indivisible”, “secular” and “sovereign” employed in Article 1 of the Constitution as speaking to the disaggregated discrete rights of the electorate in a democratic society.
Yours faithfully,
Professor Justice Duke Pollard
