The letter by Mr Anil Nandlall, Attorney General and Minister of Legal Affairs ‘The President has untrammelled freedom to assent to and withhold assent from Bills’ (Stabroek News, September 30) addresses two principal points: first the presidential assent (or non-assent) of Bills and second, the role of the Attorney General in the process.
On the first Mr Nandlall argues that President Ramotar has an untrammelled right to withhold his assent to Bills, and cites not only the constitutions of India and the USA, and the Royal Prerogative in the United Kingdom but also refers to the oath by the President to preserve and protect the Constitution of Guyana.
I disagree both with Mr Nandlall’s arguments and his conclusions. While there is nothing wrong with citing constitutions, cases and laws from other countries, any discussion or debate on the Constitution of Guyana must be guided by its Article 8 which states in simple and clear language: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
Constitutions, judgments and academic publications from other jurisdictions are at times of tremendous value but their use and relevance have to take account of all the circumstances including the specific facts and the particular constitutional provisions. I do not think Mr Nandlall will argue that the Queen’s assent to Bills in the UK which has what is referred to as parliamentary supremacy with no formal written constitution, or that of the titular President in India, are comparable to Guyana with its written constitution and an executive presidency.
Accordingly, I do not consider it necessary to engage in any extraneous references to other constitutions or countries in order to respond to Mr Nandlall’s propositions that the President has unfettered powers to refuse to give his assent. Instead I refer to the following provisions of the Guyana Constitution which are contained in Chapter II: Principles and Bases of the Political, Economic and Social System, and which govern the acts of the President, the courts, etc:
Article 9: Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution;
Article 12: Local government by freely elected representatives of the people is an integral part of the democratic organisation of the State;
Article 13: The principal objective of the political system of the State is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens, and their organisations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.
Article 39 (1): It is the duty of Parliament, the Government, the courts and all other public agencies to be guided in the discharge of their functions by the principles set out in this Chapter, and Parliament may provide for any of those principles to be enforceable in any court or tribunal.
In addressing Article 39 in the landmark case AG v Mohammed Alli and Others, then Chancellor Massiah agreed with the submission by Dr Mohammed Shahabuddeen, AG, that “the provisions in Chapter II are not to be regarded as mere political rhetoric… They must be analysed, and, most important of all, they must be applied to those situations to which they are considered apposite.”
Mr Nandlall rightly points out that Parliament comprises the National Assembly and the President. It is hardly open to any interpretation that one half of the Parliament, i.e., the National Assembly, comes within Article 39 but not the other half, i.e. the President.
When the National Assembly seeks to make laws it is carrying out one of its principal functions and that is to “make laws for the peace, order and good government of Guyana” (Article 65). The President cannot without good cause seek to frustrate the National Assembly by unreasonably withholding assent on such unjustifiable grounds that the Bill was not supported by his party.
In the Preamble to the Guyana Constitution, it is stated that the people of Guyana proclaimed the constitution to forge a system of governance based among other things on the rule of law. That rule gives unfettered powers to no one. All are bound by the constitution.
Dicey, regarded as one of the pioneering authorities on constitutional law had this to say on the rule of law: “In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” It is to prevent such abuse that neither the President nor the AG is the authority for the interpretation of the constitution. That is the function of the courts.
Mr Nandlall is aware that if he or the President has any doubts about the constitutionality of a Bill presented to him for assent, he can seek a declaration of the court as the guardian of the constitution, but not allow a situation where the supreme law is opportunistically flouted.
And as for the oath taken by the President, surely the oath applies to the entire constitution including guaranteeing all Guyanese participation in local government elections, an Ombudsman, a Public Procurement Commission, a Local Government Commission, a Parliamentary Standing Committee for Constitutional Reform, protection of right to life and the right to pension and gratuity. These are infinitely more important than some unsupported claim by the President or the Attorney General that Bills have to receive a Certificate of Assent or are unconstitutional.
On the second issue, Mr Nandlall can offer no better reason for his intervention in the assent process than that the Chief Parliamentary Counsel is housed in the Chambers of the Attorney General; that this is a practice derived from the colonial era; and that one of the proponents of the argument against Nandlall’s role had himself engaged in the practice. None of these has any merit and the only comment I would make is that the assent certificate was a pre-Independence requirement because of the limited powers of the then legislative assembly. Mr Nandlall can hardly be suggesting that an administrative practice overrides the Standing Orders of the National Assembly which are themselves recognised and protected by the constitution.
Further, if the President wishes to have the advice of the Attorney General on any aspect of a Bill for assent, then the Attorney General’s review of the bill must be considered within the timeframe of twenty-one days provided under the constitution. The President cannot therefore use the delayed transmission of the Bill through the Attorney General as an excuse for breaching the constitution.
Mr Nandlall now needs to disabuse himself of any notion or role of his office in the constitutional process regarding the assent of Bills. If the President has any concerns about the constitutionality of any Bills he should ask the Attorney General to seek a declaration of the court, not subvert the constitution and deny the people their constitution rights.