At the CCJ, Attorney General Basil Williams and other attorneys for the PNC led government in Guyana requested that the challenge to the third term law be dismissed because the plaintiff Cedric Richardson waited a dozen years before challenging its legality. But legal precedents reveal there is no time limit to challenge an unconstitutional law.
In Trinidad, for example, a challenge was mounted in 1973 to the Cess Act of 1965 requiring cane farmers to pay a fee to an organization. It was some eight years later that Ramesh Maharaj challenged its legality. The courts ruled in his favor (Prakash Seereeram Vs AG of T&T) declaring the law unconstitutional. Similarly, in the US, the Supreme Court declared laws unconstitutional decades after they were passed. Clearly, there is no time limit to challenge an illegal law, reinforcing the principle that unconstitutionality of a law does not make it constitutional over time. The illegal Burnham constitution does not become constitutional just because no one challenged it in court.
In the third term case, the state’s lawyers never made the above point in the High Court and the Court of Appeals in Guyana. Introducing it now is considered to be a new issue and an abuse of process. There is a well-established legal principle (globally) that new issues cannot be submitted in an appeal court matter. Silence at the “trial level” to raise the issue of delay in challenging term limits is an acceptance by the state of the arguments made by Richardson. It would now be a disadvantage to Richardson if it is accepted at the CCJ level denying him an opportunity to respond. We don’t know how the court would have ruled had the state made this point in Guyana, and at any rate time factor does not negate a legal challenge. Thus, at the appeal level before the CCJ, it should not be accepted. Otherwise, it would be an abuse of legal process and legal principle.
I am not a lawyer. But I studied and taught US constitutional law. At the appeal level, new issues are not allowed unless in extreme situations, where, for example, such information was disallowed at the lower “trial” level. Information was not disallowed in the “trials” in Guyana. The state never raised the issue of Richardson’s long delay in challenging the term limit law.
The US Supreme Court (SC) and the Privy Council (PC) would not allow time factor to dismiss a case challenging an illegal law. Also, the SC and the PC would not tolerate new issues when hearing an appeal. It will be surprising if the CCJ accepts the argument made by the state lawyers. Grounds for appeal are based on law and if there was a misapplication or mis-reading of the law by the lower courts. Appeals are not based on factual matters but on legal grounds. Time does not negate Richardson’s challenge to the third term law.