PRESIDENT’S POWER TO WITHHOLD ASSENT

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THE President’s withholding of his assent to two bills which emanate from the Opposition, but which did not receive the support of the Government in the National Assembly, has, expectedly, evoked criticism from the Opposition Parties, as well as commentators. The two bills referred to hereof are the Former Presidents (Benefits and other Facilities) Bill 2012, No. 29 of 2012 and The Fiscal Management and Accountability (Amendment Bill) 2012, Bill No. 24 of 2012.
The Joint Opposition has accused the President of precipitating a constitutional crisis and one commentator has accused the President of usurping the functions of the Court and the Speaker of the National Assembly.
Perhaps it is imperative that I recite certain elementary but fundamental principles, as it is manifest that some find these principles, inexplicably, elusive.
Article 51 of the Constitution provides, “there shall be a Parliament of Guyana, which shall consist of the President and the National Assembly”. Article 170 of the Constitution outlines the mode to be utilised by Parliament in discharging its law making powers. For the avoidance of doubt, I set out this article in extenso hereunder:
Article 170
(1)   Subject to the provisions of article 164, the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly and assented to by the President.

(2)   When a Bill is presented to the president for assent, he shall signify that he assents or that he withholds assent.

(3)   Where the President withholds his assent to a Bill, he shall return it to the Speaker within twenty-one days of the date when it was presented to him for assent with a message stating the reasons why he has withheld the assent.

(4)   Where a Bill is so returned to the Speaker it shall not again be presented to the president for assent unless within six months of the Bill being so returned upon a motion supported by the votes of not less than two-thirds of all elected members of the National Assembly resolves that the Bill be again presented for assent.

(5)   Where the National Assembly so resolves that a Bill be again presented for assent, the Bill shall be so presented and the President shall assent to it within ninety days of its presentation.

(6)   A Bill shall not become law unless it has been duly passed and assented to in accordance with this constitution.

In so far as it is relevant to the issues at hand, the following can be discerned as incontrovertible:
1.      that the National Assembly is not Parliament; it is merely a constituent part of Parliament; that the other constituent part is the President;

2.      that a Bill only becomes law after it receives, at a minimum, the approval of a majority of votes in the National Assembly AND the assent of the President;
3.      that when a bill is presented to the President, he is constitutionally empowered to signify his assent to the same OR, to withhold his assent;

4.      in the event that he chooses to withhold his assent, then he is obliged to return the Bill to the Speaker within 21 days of the date when it was presented to him for his ascent with a message stating the reasons why he has withhold his assent.

It is crystalline from the above, that the President acted within the constitutionally prescribed parameters when he withheld his assent and returned the Bills to the Speaker with his reasons for withholding his assent.  In the circumstances, it is respectfully submitted that the contention that the President has caused a “constitutional crisis” is rooted in fantasy rather than reality. For the purpose of completeness, it is apposite that I dwell briefly with the reasons proffered by the President for withholding his assent.
The common reason advanced by the President for withholding his assent in respect of both bills, is grounded in the constitution itself and touch and concern the doctrine of constitutional supremacy. Article 8 of the Constitution declares the said constitution to be the supreme law of Guyana and states that of any other law which is inconsistent with it, that other law shall to the extent of the inconsistency, be void. The gravamen of the list of reasons advanced by the President for withholding his assent is that the two Bills collide with Article 8 of the Constitution and are accordingly void.
In sum, the reasons tendered by the President are not fanciful, irrational or even political, but are indeed principled and legal. Obviously, one is free to disagree with the reasons proffered.  But that cannot be a rational basis for the injudicious assertion of a “constitutional crisis”.
A fundamental constitutional reality which must be recognized in this legislative matrix, is that the President is not a mere rubber-stamp of the National Assembly.  The President has a constitutionally endowed jurisdictional freedom to withhold his assent to Bills if he believes them to be misconceived and wrong in principle.  That is a presidential prerogative which cannot be whittled away at the altar of political expediency.

One commentator has advanced the contention that “it is the function of the Courts not the President to determine the constitutionality of legislation.  It is the function of the Speaker, not the President, to determine whether a motion or a Bill requires cabinet approval”.

These assertions are deeply flawed.  They are predicated open the misconception that the President by expressing his opinion, that the Bills are unconstitutional, he has somehow displaced the functions of the court as being the sole arbiter of unconstitutionally.  This is a patently irrational assumption.  Its irrationality can be vividly illustrated by examining the converse situation, which is, the President assenting to the Bill.  Can it then, in that circumstance be intelligently argued that the President has determined the constitutionally of the Bill and therefore has effectively ousted the court’s jurisdiction from ever entertaining a challenge to its constitutionality?  Certainly not! The legal truth is that the Court’s jurisdiction to question the constitutionality of Bills and actions by the state and its various organs can never be dismantled by the President or any other agency.

The power resided in the Speaker to determine whether a particular Bill requires the recommendation of Cabinet is actually the subject of an article in the Constitution and it relates to a particular type of Bill (Article 171). The Speaker’s power in this regard is not disputed.  It is the President’s contention, however, that the Speaker fell into error, when he determined that the particular Bill under review did not fall into that category of Bills which requires the recommendation of Cabinet as signified by a Minister. This difference of opinion is clearly permitted.

The clear intendment of Article 170 is to ensure that the Executive President of this land is not held to ransom or captive of the National Assembly, and it is to be interpreted to prevent such an eventuality, so that there will be at all times due equilibrium between the two constituent components which comprise of that unitary whole called Parliament.

Any other interpretation will certainly result in a constitutional crisis.