Photo : Dr. Vishnu Bisram
Is the legislature sovereign over the people or the people sovereign over the legislature? The US Supreme Court says the people are sovereign; they determine the kind of government they will have. But in Guyana, the ruling APNU (PNC)+AFC government feels the legislature is sovereign over the people and can decide for the people on constitutional matters. It is a democratic excess for parliament to make amendments to a constitution especially when the people never had an opportunity to give their consent to the original constitution. In a situation like this, shouldn’t the court intervene on the side of the people to empower them and give them the power to decide on constitutional amendments?
The Caribbean Court of Justice (CCJ) will decide very soon on the very important constitutional issue of peoples’ sovereignty as it relates to Guyana. The ruling will have repercussions throughout the Caribbean region even in those states. There are precedents in other countries where the highest court ruled that only the people could alter a constitution. Will the CCJ endorse these precedents?
The Guyana constitutional matter was heard before the CCJ mid-March and a ruling is pending. How will President Dennis Byron and his six other Judges (four Africans, two Whites and one Mixed with no Indian jurist) in the CCJ adjudicate on a political issue in a racially divided nation like Guyana (with almost half of the population Indian and a third African, a tenth Amerindian and the rest Mixed)? Is it morally or even legally right for a court that is not representative of the ethnic composition of Guyana or the region’s population to rule on an issue that will affect its politics? Keep in mind that Guyana’s politics is racially polarized.
In democratic countries, sovereignty belongs to the people. The people are the source of power and the people decide on the kind of government they will have. The ruler or the legislature cannot decide how the people will be governed as all power flow from the people. The US is the world’s oldest democracy and a model for the world. The US Supreme Court is very clear on the issue of sovereignty to which the founding fathers alluded, and whenever there was an attempt by the US legislature to usurp the peoples’ power, the people challenge the legislature in the courts. US Supreme Court consistently tells the legislature to go back to the people for any (formal) changes to the constitution rendering any alteration to the constitution by the legislature as unconstitutional; the court instructs the legislature that the people must decide on altering the constitution. The US Supreme Court never blocked or declared any act (amendment) unconstitutional that was formally approved by the people. Thus, efforts at passing bills to impose term limits by the legislature were considered unconstitutional. And in Guyana, the local courts declared an amendment to impose Presidential term limits as unconstitutional. The courts instructed parliament that such an amendment to the constitution must be approved by the people in a referendum. The Guyana government disagreed and appealed the ruling arguing that parliament is more sovereign than the people. But the Guyana courts declared that sovereignty rests with the people, and that the sovereign (people) does not give up its right to how the nation will be governed when they elected the parliament. In other words, the parliament cannot dictate to the people how they will be governed.
The seven judges of the CCJ will decide this issue of sovereignty of the people. Ministers of the government and legal advisors to the Attorney General, including a former judge of African descent, have been lobbying the CCJ to rule in the government’s favor arguing the parliament is supreme over the people. The Guyana Constitution, which was created by the Burnham dictatorship after a fraudulent referendum in July 1978, makes it unambiguously clear that sovereignty belongs to the people and the parliament exists to give effect to the will of the people. The so called Burnham constitution says it (the constitution) cannot be changed unless the people are consulted. An act of parliament or the elected representatives passing an amendment to the constitution is not consultation. Merely meeting people for their views is not consultation as one does not really know the peoples’ view from meetings. Allowing the people to vote (in a referendum) on an amendment is the best form of consultation as the people directly and secretively give their view on how they feel about the changes to the constitution.
The Burnham constitution was a creation of electoral fraud. And now, the Guyana parliament has sought to impose changes to it without consultation from the people. That would be enhancing the fraud without consulting the people. Since the people never had an opportunity to vote for the Burnham constitution, the principled thing to do is to seek the peoples’ vote on any changes (amendments) to it. The right decision for Sir Dennis Byron and the judges of the CCJ is to sustain the ruling of the lower courts for the government to put the amendment of term limits to a referendum. Let the people decide on this matter! It would also have been nice for the CCJ to also rule on the legality of the Burnham constitution itself since the 1978 referendum was rigged. But this matter is not before the court. People should challenge the legality of the constitution