ON THE 25th day, 2012, the Leader of the Opposition moved a Motion calling on the National Assembly to “censure and express a  no-confidence in the Minister of Home Affairs over his inability to discharge his responsibility for public security and calls for the immediate revocation of his appointment as a Minister of the Government and his dismissal from office.” This Motion was tabled only a few hours before the sitting of that day commenced.
The government side objected vehemently.  We requested a deferral of the motion to a subsequent sitting.  We emphasised that the Motion requested a no-confidence in a Minister of the Government – a matter of fundamental importance by any standard.  We cited examples right across the Caribbean where No Confidence Motions were laid in Parliaments, and on each occasion, sufficient time was afforded to the government to reply.  We explained that natural justice demands that sufficient notice be given to us, and that reasonable time be afforded  us to prepare a response.Our objection notwithstanding, the Speaker rejected our request and ordered the Motion to proceed.  An unprecedented decision indeed, and one that is in violation of all parliamentary traditions on the issue.

The commission of inquiry
The July 18th incident is indeed a tragedy, and about that there is no disputation.  The President, within a few hours after the incident, issued a statement.  In this statement, he expressed his and the government’s deepest condolences to the relatives who lost their loved ones, and wished those injured a speedy recovery.  He also, in that statement, signalled his intention to establish a commission of inquiry.  The President was obviously referring to the powers which the Commission of Inquiries Act Cap. 19:03, reposes in him to commission an inquiry into any incident or matter in the public’s welfare and interest.

The very next day, the President invited the joint opposition to be a part of the process to establish this commission.  Significantly, the President could have proceeded unilaterally and establish this commission by himself, as the law permits him and actually contemplates him to do.  Instead, in the spirit of compromise, as a show of good faith and in an effort at consensual politics, he requested the input of the joint opposition.  For this initiative, the President must be roundly commended.  Oftentimes, we hear the talk of working together for the common good.  Once again, the government leads the way.

The opposition’s bad faith and unprincipled conduct
At the engagement between the President and the joint opposition, it was agreed that the commission of inquiry will be established; that the terms of reference will be jointly crafted to ensure that it is broad enough to cover the relevant facets of the incident; that the Commissioners will consensually be selected; that the time within which the commission will commence and conclude its task will be agreed upon; that it will be financed through a supplementary request, which will be laid in the National Assembly and supported by all the parties.
These matters were deliberated and decided through engagements which lasted over several days.  The Leader of the Opposition led the APNU team.  The Speaker led the AFC team.  No sooner had this agreement been finalised, than the government was met with the flabbergasting news that the Leader of the Opposition had dispatched to the Parliament, a Motion of No Confidence in the Minister of Home Affairs on the 25 July, 2012, with a request that it be debated the very day!
This is yet another demonstration that the joint opposition is not prepared to work together with the government in the public’s interest.  It is yet another example that they are not prepared to honour agreements.  It is yet another exemplification of bad faith.   It is yet another illustration of unprincipled conduct.  And I can go on.  But what is most deplorable, is that they are prepared to embark upon a course of action which preempts, prejudices and undermines the very process to which they had committed themselves just hours earlier.  They now enjoy but only a majority by one in the National Assembly.  It is not difficult to speculate about their conduct should they ever wield governmental power over this land.

Inquiry rendered nugatory
In the absence of any evidence, any investigation, any findings whatsoever, the Motion condemns Minister Rohee to guilt, and ascribes to him blame for the incident at Linden.  Those who spoke in support of the Motion spoke of “murder of innocent people by the police” upon the “instructions” of Minister Rohee.  So that in the absence of any evidence and without any investigation in any form or fashion, the National Assembly has become the  investigator, judge,  jury and  executioner, rendering the holding of any investigation and inquiry wholly obsolete, nugatory and superfluous.  For these are the very issues which will be the subject of the inquiry.
If the supreme law-making institution of the land is prepared to take such a dangerously precipitous position; one that mocks at the constitutional doctrine on presumption of innocence and one that strikes at the very foundation upon which our legal system rests, then on what basis do we convince the ordinary man that he must subject himself to due process of the law and wait for his justice?
It is indeed from this perspective, and on this basis that it behoves the National Assembly, at a minimum and even if only for public optics, to lead by example. At this critical juncture, when emotions are high and passions run deep, it is incumbent upon the National Assembly to remain above the fray, as difficult as this may appear, and to lend leadership.  If the leaders of our country themselves become overwhelmed by emotions and poisoned with prejudice, then who is left to lead the people out of this dilemma; who will ensure that there is due process of law; who will ensure that the truth unfolds and justice meted out in accordance with law by a properly constituted tribunal.  It is simply not open for a mature National Assembly to adopt the posture which has been assumed in this instance.

Minister’s relationship with police force
A properly constituted tribunal must necessarily examine the relationship between the Minister of Home Affairs and the Guyana Police Force. In this regard, an examination and interpretation of Section 7 of the Police Act Cap 16:01 is a prerequisite.  It provides thus:

s. 7:    “The Commissioner shall, subject to the general orders and directions of the Minister, have the command and superintendence of the Force, and he shall be responsible to the Minister for the peace and good order throughout Guyana, for the efficient administration and government of the Force, and for the proper expenditure of all public moneys appropriated for the service thereof.”
This section was interpreted and explained by the Disciplined Forces Commission, a body established by the 8th Parliament and chaired by Justice Ian Chang, SC, and on which both myself and Mr.  David Granger sat as members. This Report received the unanimous support of all parties in the National Assembly at the time. The Report states as follows:

“It is clear that Section 7 confers upon the Commissioner the overall power of command and superintendence of the GPF.  The power to command and superintend is inherently an internal power and cannot be shared with someone extrinsic to the GPF”
“Section 7 also confers upon the Minister a power to issue general orders and directions to the Commissioner and has rendered the power of internal command and superintendence to the Commissioner, subject to such general orders and directions.  Since the Minister is extrinsic to the structure and composition of the GPF, his power to issue general orders and directions can be only to the Commissioner.
“Since the statutory power of the Minister relates to an executive function and responsibility, the power to issue general orders and directions to the Commissioner is necessarily limited to general orders and directions of an executive nature and not a power to issue general orders and directions which involves encroachment on the internal power of the Commissioner to command and superintend the GPF.  The words, “subject to” must therefore be interpreted to mean “in accordance with” or “not inconsistent with” and not as implying any overriding power in the Minister to command and superintend the GPF.  The Minister’s executive power to give general orders and directions to the Commissioner is for the purpose of enabling him to establish and define the parameters within which the power of internal command and superintendence of the Commissioner is to be exercised.  It enables the Minister to establish executive objectives by which the Commissioner must be guided in the exercise of his internal power to command and superintend.  But the Minister’s power to give general orders and directions to the Commissioner does not extend to ordering or directing him how the GPF is to be commanded or superintended… the Minister may give general orders or directions as to what functional operations should be carried out but cannot direct how such functional operations should be carried out.”

The right to life
Similarly, a tribunal will also have to examine Article 138 of the Constitution and in particular, Article 138 (2).  It guarantees the right to life and explains the circumstances in which killing is, constitutionally, justifiable. Article 138 provides thus:
138.

(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the law of Guyana of which he has been convicted.

(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this article if he dies as the result of the use of force to such extent as is reasonably justifiable in the circumstances of the case: –

(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a criminal offences,

The Disciplined Forces Report also examined this constitutional provision in great detail, in particular, the circumstances which justify the use of lethal force. I am not for one moment suggesting that the killings were justifiable.  In the same vein, no one, including the National Assembly, should and can conclude at this stage that they were not.  This is the raison d’être of the commission of inquiry.
Unfortunately, the National Assembly has already rendered its verdict.  In so doing, it has disregarded the Constitution, natural justice, due process and even the Report of a Commission which it established and unanimously endorsed. One must be left to wonder what is next.