The Caribbean Court of Justice to Determine Constitutional Connection?
By Dr. TARA SINGH
In a few weeks’ time, the Caribbean Court of Justice (CCJ) will rule on whether or not a former President of Guyana has a right to run for a third term in that office. The ruling hinges on how the CCJ evaluates the role of an important doctrine called “sovereignty” as well as a crucial process called a “referendum,” which feeds into the doctrine of sovereignty.
This case was brought to the Guyana High Court by a private citizen. The Chief Justice determined (and that ruling was upheld by the Guyana Court of Appeal) that a former President can seek a 3rd term in that office and that the existing law (Act 17 of 2001) to prevent him from running for a 3rd term is unconstitutional since it violates the people’s right to be allowed to choose their President.
To get some insights into the rationale of the Guyana High Court’s ruling, we need to develop a fair understanding of the doctrine of “sovereignty” and the application of the “referendum” process to give effect to the sovereignty doctrine. These are pivotal and perhaps indispensable concepts to good governance and constitutional law.
Sovereignty derives from the word, sovereign, which has historically been associated with royalty or the monarchy. It refers to the monarch’s supreme power over a defined jurisdiction and his/her superordinate position in the power structure. Under the monarchical system all power flowed from the ruler (King or Queen). However, 20th and 21st centuries’ enlightenment reformers have rightfully re-casted the base of that power (sovereign) to where it rightfully belongs, to the people.
Sovereignty in relation to a country or state is generally taken to mean, therefore, the exercise of supreme power by a central body that is authorized (usually through an election) by the residents of a defined geographical space (usually a country), and the concomitant recognition of such central authority by residents of other geographically defined space (other countries). Sovereignty also connotes the capacity of people to interact across such boundaries.
At the core of most countries’ constitution resides the sacrosanct doctrine of sovereignty. In the UK, the struggles between the Parliament, the people and the monarchy eventually led to the dismantling of the once indisputable “sovereignty of the monarchy” to make way for the “sovereignty of the people,” which has been largely exercised through their legislative representatives, who constitute their Parliament. The UK Parliament has been viewed as vested with the people’s sovereignty, otherwise referred to as “Parliamentary sovereignty.”
The implicit understanding is that the people surrender their sovereignty to their Parliamentary Representatives at election time. But we do not wholly agree with this deduction.
What the British people surrender, in effect, at election time is one important component of their sovereignty. But this (power to elect representatives) is not the only component of sovereignty, there are at least two other components, namely, (i) the power to recall representatives and (ii) the power of the referendum. While the people surrender a part of their sovereignty to their elected representatives at election time in exchange for good governance in accordance with existing laws and the constitution, they never give up the other two aspects of their sovereignty, the recall process and the referendum. These are available to them at all times, while an election is usually available only after every 4-5 years. The lessons of history across the majority of western democratic nations, illustrate that sovereignty is not indivisible but rather “divisible, “and that it falls into at least 3 components.
The assumption that people surrender in total their sovereignty at election time has been based on the British archaic notion that Parliament is sovereign in all its aspects; a position whose foundation was rattled by the Brexit referendum experience of 2016. Against the deeply-held theory that the UK Parliament is fully sovereign, why then did the British government decide to conduct a referendum on the issue of the UK leaving the European Union? If policy makers really believe that Parliament is fully sovereign, why didn’t Parliament make the decision to exit the EU? Furthermore, since the Brexit as well as other referendum in the UK is non-binding and is also not part of their Parliamentary tradition, why did the British government still chose that path? The answer is simple. The British government now recognizes that sovereignty is “divisible” and that the people could also lay claim to their sovereignty through the referendum and the recall process.
If elected representatives (e.g., MPs) violate the unwritten social contract between themselves and the people, the latter has the right, as part of their sovereignty, to recall their representatives. For example, in 2004 Venezuelans initiated the recall referendum on former President Hugo Chavez. Voters decided through the referendum that Chavez would remain in office. The recall aspect of sovereignty has rarely been used internationally, but it’s available to the people for use as they deem fit. Voting at election time does not deny them of this sovereign right to recall. This aspect of their sovereignty is still immutable.
A referendum could be binding; it could be non-binding. It could be utilized for making constitutional as well as non-constitutional changes. It’s an important tool in governance. It has been used to introduce new constitutions (like in Venezuela); changes to existing constitution (e.g., Ireland); for devolution of power (e.g., Scotland), etc. The power of the referendum which is the expression of people’s sovereignty, is aptly reflected in numerous countries’ constitutions. The people’s right to determine the structure of their constitution and related changes through the referendum process has been enshrined in numerous countries’ constitutions. There are however a few countries (Malaysia, Norway, Cyprus, etc.,) whose respective constitution makes no mention of the referendum or plebiscite process.
Altering/Amending a constitution is serious business and that’s why countries like the Philippines, Uruguay and Australia have stated that such changes could only be made through the referendum process. The Constitution of the Philippines, for example, could only be amended or revised through a national plebiscite. A referendum has to be deployed in Australia in order to amend the Australian constitution. And in Uruguay, the country’s constitution allows citizens to “challenge laws approved by Parliament by use of a referendum or to propose changes to the Constitution by the use of a plebiscite.” In Ireland, the constitution can only be modified by referendum. The Scottish Parliament was created through the Scottish devolution referendum in 1997. The constitution of Romania defines that a referendum has to be called to suspend the President from office, or to amend the Constitution.
At a minimal level, the approach to constitutional changes that are highlighted here should also govern the process of changes to the entrenched positions of the Guyana constitution (the electoral process, powers of the presidency, powers of Parliament, sovereignty of the people, independence of the Judiciary and the Service Commissions, etc.). The referendum process (seeking the people’s consent) is the way forward in which the entrenched positions of the Guyana constitution should be altered/amended. [Article 164 (2) (a)]. Because the referendum process was not followed by the Guyana Parliament when it restricted the Presidency to a two-term limit, the Guyana High Court ruled that the Parliament acted unconstitutionally. By failing to conduct a referendum to get the people’s consent to the Presidential term limit, Parliament has also violated the people’s sovereignty (Article 9). It would be interesting to see what significance the CCJ will attribute to the referendum process and where they would locate the doctrine of sovereignty as well as explore how, if any, the two are interconnected!
DR. TARA SINGH IS AN INDEPENDENT COLUMNIST. The views expressed in this column are solely those of the writer and do not necessarily represent the views of THE WEST INDIAN.