ATTORNEY-GENERAL and Minster of Legal Affairs, Mr. Anil Nandlall, on Monday night in the National Assembly, maintained the constitutionally protected right of President Donald Ramotar to decline assent to what, in his estimation, are unconstitutional Bills and return them to the House with explanation of his reasoning.The AG pointed that:“Article 170 (2) of the Constitution provides that when a Bill is presented to the President for assent, he shall signify that he assents or that he withholds assent’.
“Section 3 adds that ‘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’.
“It is the crystalline from the above, that the President has an undoubted and untrammeled freedom to assent to and to withhold his assent from Bills presented to him.
“In the case of the latter, he is constitutionally mandated to proffer reasons for so doing. The notion, therefore, that the President is obliged, robotically, to render his assent to every Bill passed by the National Assembly, is manifestly misconceived. The Constitution does not contemplate it, neither does legal logic support it,” Nandlall stated.
He called on the Opposition to rid their minds of this misconception and refrain from peddling it.
Palpably wrong
“The contention, therefore, that the President cannot withhold his assent to a Bill on the ground that, in his opinion or based upon the advice he receives, that the Bill is unconstitutional, is a contention that is palpably wrong,” the AG said.
He added that, to place such a restriction upon the President’s power to withhold his assent from Bills is “ultra vires the express language” of the Constitution.
Nandlall continued: “The framers did not contemplate it and the Constitution does not warrant it.
“…the Presidential Power of withholding assent to Bills is not peculiar to the Guyana Constitution.
“It owes its genesis to the Royal Prerogative and has been retained by many of the great democracies of the world,” he explained.
The AG cited the Constitutions of India, South Africa and even the United States, as examples of the similar precedence.
Addressing the most talked about, which has not received Presidential assent, the Local Government Amendment Bill, Nandlall acknowledged the many criticisms.
However, he said the majority in the Select Committee made several deletions of clauses which were in the legislation tabled by the Minister of Local Government and, in most of the instances, no amendments were inserted to fill the deficiencies created.
The AG argued: “In consequence, if the Bill is properly examined, one will quickly identify several structural and institutional deficiencies in the architecture of the Local Government structure, which the Bill purports to create.”
Many functions
He referred, for example, to the many functions which the Regional Executive Officer is to perform, including oversight, approval of financial transfers to Neighbourhood Democratic Councils (NDCs) from Central Government and a host of other executive responsibilities that are the subject of a clause in the Bill.
“This clause has been simply deleted but nothing is substituted thereof. So, currently, there is no one in this Bill to perform these important functional responsibilities,” the AG noted.
He said the clause of the Bill which allows for certain officers, like the Environmental Health Officer, Environmental Health Assistants and other public health officials and public officers to institute legal proceedings or effect prosecution in the Courts in respect of violations of the law and by-laws have been deleted.
“Again there is no substitute. So, a whole regime of by-laws and municipal related laws cannot be enforced by way of the legal process,” the AG pointed out.
Nandlall lamented, too, that another set of amendments in the Bill presented by the minister, relate to simply transferring executive powers from the minister to the Local Government Commission by the simple cutting out of the word “Minister” and pasting “Commission” in its stead, without appreciating the impact that it will have on the Constitution.
He said:“The effect is you have a transferral of executive power from the executive Minister to a non-executive Local Government Commission.
“The Commission, by its very nature, is not an executive agency but it is a constitutionally autonomous body like the other Constitutional Commissions and cannot be charged with executive responsibilities. The powers of the Commission are set out in Article 78A of the Constitution. It provides that: ‘Parliament shall establish a Local Government Commission the composition and rules of which empower the Commission to deal with as it deems fit, all matters related to the regulation and staffing of local government organs and with dispute resolution within and between local government organs’.”
“Clearly, it can be easily discerned that the Commission has the following functions to perform: regulation and staffing of local government organs and dispute resolution within and between local government organs. It has no other function. Therefore, whole regimes of functions which have been taken from the Minister and given to the Local Government Commission are simply ultra vires Article 78A of the Constitution,” he explained.
The AG questioned how the President could “assent to such travesty” and be in a position to defend its constitutionality.
Remains intact
About defending the constitutionality of a decision, Nandlall was emphatic in pointing out that the role of the judiciary remains intact and any challenges to the President’s decision can still be made.
He said: “The argument advanced that the President or the Attorney-General has no power and authority to opine that a Bill is unconstitutional, is awfully infantile.
“Everyday lawyers interpret the law and the constitution and advise their clients. Indeed, every legal system will break down and civilisation will come to halt if every time someone needs legal advice, they are required to approach a Court for its interpretation and advice.
“The arguments advanced are predicated upon the misconception that the President, by expressing his opinion that the Bills are unconstitutional, has, somehow, displayed the functions of the Court as being the sole arbiter of unconstitutionality.”
The AG said that is a “patently irrational” assumption, which is vividly illustrated by examining the converse situation.
He asked:“If the President assents to the Bill, can it then be argued that the President has determined the constitutionality of the Bill and, therefore, has effectively ousted the Court’s jurisdiction from ever entertaining a challenge to its constitutionality?”
Legal truth
Nandlall answered:“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.”
President Ramotar has, himself, publicly alluded to the dangers in reversing his decision to sign Bills which he said are unconstitutional, as per his legal advice.
He cited the Esther Pereira Elections Petition case of 1998, in which, despite an agreement by Members of Parliament, a legal case did result.
“How do I know if I sign this, despite my legal advice, that another Esther Pereira will raise its head and impeach me,” the Head of State pondered.
The President made it clear that nothing is preventing the Opposition from challenging his reason for withholding assent and taking the matter to Court.
By Vanessa Narine