IN THIS installment, I continue my examination of the no-confidence motion brought by the Leader of the Opposition against the Minister of Home Affairs.  It is common knowledge that the motion was voted on and passed by the majority of one. The arguments which were advanced in support of it fell into two broad categories.  
Firstly, the APNU members’ simple and simplistic contention was that Minister Rohee must resign because they have concluded that the Police shot and killed the persons at Linden on July 18, 2012; did so unlawfully, and did so upon the directions of the Minister of Home Affairs. This conclusion has been arrived at in the absence of any investigations whatsoever, without a scintilla of evidence whatsoever, and without any hearing whatsoever afforded to the Minister. Quite a bizarre state of affairs, especially, when one takes into account that such a position is assumed by no less an institution than the National Assembly of a sovereign nation.
Secondly, the AFC, obviously recognising the patent absurdity which afflicts the position adopted by the APNU debators, predicated their presentations on the doctrine of “ministerial responsibility”.  In short, they argued that since  Minister Rohee holds responsibility over the Guyana Police Force, then, by virtue of the doctrine of ministerial responsibility, he must resign.  Inherent in this argument is also the precipitous conclusion, upon no evidence and without any investigation, that the Police shot the persons at Linden, and did so unlawfully.  But it is upon the doctrine of ministerial responsibility which I wish to focus.

Ministerial responsibility
The doctrine of ministerial responsibility owes its genesis and evolution in Britain as part of that country’s constitutional conventions.  Significantly, Britain never had a written constitution.  Fundamentally also, theirs is a democracy which is premised on the doctrine of parliamentary supremacy.  So that in the absence of a written constitution,  Parliament remains supreme.  Ours is a democracy predicated upon the doctrine of constitutional supremacy in which we have a written constitution which is supreme and to which our Parliament remains subject.  These cardinal differences must form the backdrop against which the doctrine of ministerial responsibility must be viewed.  
Importantly, when one examines the historical evolution of the doctrine of ministerial responsibility in Britain itself, one is forced to recognise that it has undergone a characteristic metamorphose.  In its current formulation in Britain, the doctrine is not applied unless there is a finding of actual wrongdoing on the part of the Minister.   This position has been arrived at in recognition of the innate unfairness and the fundamental injustice which inhere in a doctrine that ascribes sanction to a Minister without any finding of culpability or even involvement on his part.  The proliferation of statutory bodies, public corporations and agencies which enjoy functional autonomy and independence in today’s world must have had a causal impact on the doctrine in its current form in the United Kingdom.  In short therefore, even in Britain, where the doctrine was born, and is still resident, it will not vicariously apply to a situation where there is non-involvement on the part of a Minister.  In this regard, Professor de Smith, in his treatise, Constitutional and Administrative Law, seventh edition, page 164, makes a fundamental statement:
“If a minister has no power or duty to take any action with regard to a matter, he cannot properly be held accountable to parliament for what is done or left undone; hence a minister is not expected to answer parliamentary questions about the day to day administration of nationalised industries and many other public corporations or most of the activities of local government authorities or the Police.”
In applying the doctrine of ministerial responsibility, the first and foremost hurdle to cross, is whether these British conventions have any place in jurisdictions, like Guyana, that have a written constitution which is declared to be supreme.  The authorities in the Commonwealth Caribbean, which I have consulted, including Sir Fred Phillips, Commonwealth Caribbean Constitutional Law, 2002, and Professor Albert Fiadjoe’s Commonwealth Caribbean Public Law, 1999, both argue that the Constitutions of Caribbean territories have already codified the British conventions which are to apply to these jurisdictions, and while we enjoy the freedom to import and incorporate conventions that are extant in England, unless and until we do so, those which exist in England ought not to apply in our jurisdictions in the face of our written constitutions.  Other academic writers, including, Lloyd Barnett, Constitutional Law of Jamaica, 1977, Magaret DeMerieux, The Codification of Constitutional Conventions in Commonwealth Caribbean Constitutions, [1982] 31 ICLQ and A.R. Carnegie, Constitutional Law Lecture Notes, UWI, 1982, have expressed similar opinions.  
As regards ministerial responsibility in particular, Professor H.W. Wade, in his text, Administrative Law, at page 29, states thus:
“Ministerial responsibility is one aspect of the supremacy of Parliament under which ministers are responsible to it both individually and collectively through cabinet.”
So, not only are the unwritten conventions of England wholly inapplicable to the jurisdictions of the Caribbean where written constitutions prevail, the convention which deals with ministerial responsibility, in particular, cannot apply since it is an aspect of supremacy of parliament, a doctrine that has no place whatsoever in a jurisdiction where the constitution is declared to be supreme.  Especially, where the constitution expressly speaks to how, when and in what circumstances, a minister can be removed as Article 183 of our constitution does.  Significantly, Article 106(2) of the Constitution provides that “the Cabinet shall aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefore to Parliament.”  Our constitution, therefore, recognises a collective responsibility of the Government, and not the individual responsibility of a Minister, as obtains in England.  India has a constitutional structure similar to ours, and the Constitution of India, like the Constitution of Guyana, imposes a collective responsibility on the Council of Ministers.  This collective responsibility has been interpreted in India to be joint and indivisible.  Like Guyana, there is no provision in the Constitution of India laying down the individual responsibility of a Minister and his accountability to Parliament for all the acts of omission and commission in his departmental charge.  In the text, Practice and Procedure of Parliament of India, at Page 726, under the caption, “Motion of no-confidence”, the following passage of seminal importance appears:
“In view of the expressed constitutional provision regarding collective     responsibility of the council of ministers to the Lok Sabha, a motion expressing     want of confidence is out of order; under the Rules only a motion expressing     want of confidence in the council of ministers as a body is admissible.”
Applying these principles to the situation at hand, I submit that the Speaker was hopelessly wrong in allowing the no-confidence motion to be placed on the Order Paper in the first place, and secondly, in permitting the debate of it to proceed.  I further submit, that if the National Assembly could not, or should not proceed against the Minister individually, then no legally permissible consequences can flow from the Opposition’s motion of no-confidence, which was approved merely because the Opposition used its numerical strength to do so; its palpable unconstitutionality notwithstanding.  That motion attracts the maxim, ex nihilo nihil fit, out of nothing, cometh nothing.

Ministerial lynching
I wish to revisit the Minister of Home Affairs role and responsibility in respect of the Police Force.  Section 7 of the Police Act, provides as follows:
“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…”
It is manifestly clear that the Minister does not give to the Commissioner, operational instructions and directions, relating to effective policing and law enforcement.  His responsibility remains purely of an executive nature.  The role of a Police Commissioner has been examined by the Courts in England.  In R v. Commissioner of Police ex parte Blackburn [1968] 2 QBD 150, Lord Denning adumbrated thus:
“I hold it to be the duty of the Commissioner of Police, as it is of every Chief Constable, to enforce the law of the land.  He must take steps to post his men that crimes may be detected and that honest citizens may go about their affairs in peace.  He must decide whether or not suspected persons are to be prosecuted and if need be, bring prosecution or see that it is brought.  But in all these things, he is not the servant of anyone, save the law itself.  No minister…can tell him that he must or must not keep observation on this place or that, or that he must not prosecute this man or that one, nor can any police authority tell him so.  The responsibility for law enforcement lies with him.”
In the face of the aforementioned authorities, one is forced to question the true intention of the no-confidence motion.  Is it about ministerial responsibility, or is it about ministerial lynching?  The empirical evidence impels to the conclusion that it is an expression of the latter, rather than the former.  
Interestingly, in 1950, US Secretary of State Dean Acheson, came under heavy criticism from the US Congressional Republicans for being ‘soft on communism’.  On December 15, 1950, Congressional Republicans unanimously resolved that Acheson be removed from Office.  President Truman ignored the resolution and retained Acheson as Secretary of State.  Presumably, President Truman would have acted upon the advice of his Attorney General.  The Attorney General, presumably, would have examined the legal position at the time before rendering such advice.  I have done the same.  My advice is similar.  
Once again, we have witnessed the majority of one being used to effect a political agenda in the National Assembly.  The Constitution, the law, parliamentary customs,  practice and traditions, all being sacrificed at the altar of political expediency by a majority of one.  The horse gallops on… unharnessed.