Prorogation and its consequences

Today’s column looks at the implications and consequences of the prorogation of the Parliament as promulgated by President Ramotar. Given the widespread unfamiliarity with the prorogation power and its use, it is not surprising that the development has generated such wide ranging and at times contradictory views in the media. There are two such views which though peripheral, warrant some comment: one on the description of the Constitution and the other the spending authority of the Executive during prorogation.

Some persons take objections to the prorogation powers being attributed to what many describe as the Burnham Constitution. They are being over-sensitive. The reference is eponymous and descriptive, not political or pejorative. The Munroe Doctrine is not any less the Monroe Doctrine because John Kennedy applied it or Obama modified its practical application. Certain documents are so path-breaking that they take on the name and the character of the perceived author such as the “Kaldor Budget” of the PPP Government in 1962, even though Kaldor was not even a member of the Government, let alone the Minister of Finance.

Rather than defending the Constitution these writers and commentators should address their minds to the governance model underpinning the Constitution and offer their comments and recommendations for enhancement. This prorogation has strengthened the conviction, among supporters and critics of the Government that the model is not only not working but is counterproductive.

The other is the opinion expressed by Member of Parliament and of the Shadow Cabinet Mr. Ronald Bulkan who argues that the Executive has spending authority only up to December 31, 2014. Unfortunately Mr. Bulkan did not say whether he was expressing a view shared by the Shadow Attorney General Mr. Basil Williams and the Shadow Cabinet even as he suggested that any public expenditure after that date (presumably other than direct charges on the Consolidated Fund), would be unconstitutional and illegal.

If that view is shared by Mr. Williams, it begs the question whether Mr. Williams is in the process of seeking an interpretation by the High Court or whether he will have his legal challenge ready come December 31, 2014. If on the other hand, Mr. Bulkan’s opinion is entirely personal, it seems more than a little irresponsible for any MP to be saying to all public employees – teachers, nurses, police, etc. – that any payment to them for services rendered after December 31, 2014 will be unconstitutional and illegal until sanctioned by the National Assembly. This is time for political education and action, not unjustifiable scare mongering.

Now for the substance of today’s column: prorogation and its consequences

The Constitution seems to allow for prorogation entirely at the discretion of the President, and even for the questionable purpose of nullifying another provision of the Constitution: a vote of confidence in his government, a rather positive statement. A presumption used in the interpretation of legislation, including constitutions, is that drafters are aware of the laws generally, and of any particular law, whenever they undertake any law making, review or amendments. It means this: those who during the reform process of the late nineties inserted the new Article 106 (6) into the Constitution allowing for a vote of confidence in the Government are presumed to have been aware that the same Constitution gives to the President the prorogation power. They did nothing to restrict or define that power.

As an aside, what I find interesting is that prorogation applies not only to the National Assembly but to the Parliament which is made up of the National Assembly and the President! What proroguing the President means is a mystery unique to Guyana for which there is no guidance.

Now let us look at the relevant provisions regarding prorogation.

The Constitution
While the Constitution uses the word “prorogue” or its derivation six times and simply requires for prorogation a proclamation by the President, it does not deal with any of the consequences of prorogation. The Westminster-style Constitutions of the white Commonwealth countries did however contain extensive provisions on those consequences in what are called Standing Orders. Implicitly recognizing the separation of powers of the three arms of the State, Article 165 of the Guyana Constitution provides that “Subject to the provisions of this Constitution, the National Assembly may regulate its own procedures and may make rules for that purpose.” Surprisingly however the Standing Orders of the National Assembly of Guyana are completely silent on prorogation although it does seem a bit odd that an organ which is the subject of prorogation should have any authority to define its incapacity!

The Standing Orders are not without some assistance however. Standing Order 113 – Rules in Cases not Provided for by Standing Orders provides that “in any matter not provided for [in the Standing Orders], resort shall be had to the usage and practice of the Commons Assembly of Parliament of Great Britain and Northern Ireland, which shall be followed as far as the same may be applicable to the Assembly, and not inconsistent with these Standing Orders or with the practice of the Assembly”.

The Mother Country
So it is not to Canada or Australia that we should turn for guidance but to England, a base that was left firmly in place following a review of the Standing Orders done by a Special Select Committee of the National Assembly over the period 2008-2011.

Before going into details, let us guess how the British Parliament dealt with the last Motion of No Confidence brought against the Government of the day. Did the Government ask the Queen to prorogue? If you said no, you are right. In fact the motion brought by Margaret Thatcher against the James Callaghan Labour Government was immediately debated and succeeded on a vote of 311 – 310, what we would disparagingly refer to as a majority of one.

For some guidance on how prorogation works in our model country let us look at some extracts taken from

“Prorogation marks the end of a parliamentary session. It is the formal name given to the period between the end of a session of Parliament and the State Opening of Parliament that begins the next session. The parliamentary session may also be prorogued before Parliament is dissolved.”

“Prorogation usually takes the form of an announcement on behalf of the Queen as Head of State.”

“Prorogation brings to an end nearly all parliamentary business. However, Public Bills may be carried over from one session to the next, subject to agreement.”

“Motions (including early day motions) lapse when the House becomes prorogued, questions which have not been answered fall, nothing more will happen with them. If they have not been answered then they will stay unanswered. No motions or questions can be tabled during a prorogation.”

And from the same site a Guide to parliamentary work reveals that:

“…During the period of prorogation neither the House nor any Committee may meet. …. It is also important for Parliamentary Clerks as it marks the period when parliamentary business such as Parliamentary Questions, Early Day Motions and Private Members Bills “fall‘ or “die‘. Government Bills also fall if they have not received Royal Assent, unless they are subject to a carry-over motion.”

Casualties of the prorogation
Since there was no opportunity for a carry-over motion when the National Assembly was prorogued on November 10, UK practice would suggest that all the Bills before the National Assembly that the Government so badly wanted passed would fall. The three Bills that immediately come to mind are the Telecommunications (Amendment) Bill; the Anti-Money Laundering and Combating the Finance of Terrorism (Amendment) Bill; and the Supplementary Appropriation Bill 2014 which was the “casus belli” for the AFC’s No Confidence Motion in the first place.

That is casualty number one.

Committees galore with nothing to do

The second casualty would be the Committees of the National Assembly which number about a dozen. This includes the Public Accounts Committee, the Committee on Appointments, the Constitution Reform Committee, four sectoral Committees, the Committee of Privileges and the Statutory Instruments Committee. None of these can function during prorogation.

Then there is a variety of Commissions created during the last constitutional reform, quite a few of which require inputs from the Committee on Appointments of the National Assembly. Some of these have not been constituted, including famously the Public Procurement Commission. Prorogation means that that Commission cannot be constituted during prorogation nor can vacancies requiring inputs from the National Assembly be filled.

The third casualty would be those documents and records such as the annual reports of statutory bodies which have to be laid in the National Assembly before they become public. Important among these is the Report of the Auditor General on the public accounts of Guyana. Until the National Assembly meets again, these documents will be out of the reach of the public.

The fourth casualty and arguably the most significant is the Budget which oddly, must normally be laid before the National Assembly no later than March 31 of the year. If the prorogation runs the full six months allowed by the Constitution then the Budget cannot be presented until May 10, 2015, days after any automatic spending authority for 2015 will expire.

What is not a casualty is parliamentarians’ compensation and privileges with all salaries and allowances to Members of the National Assembly being paid intact and duty free concessions available on a request to the Clerk of the National Assembly. Maybe those MP’s who are so strongly opposed to the prorogation should publicly renounce any salaries and benefits during the period of the prorogation. That would be principled based politics.

Guyana is really and truly in uncharted waters and I would hope that the Speaker, the Leader of the House and the Government and Opposition Whips are using the enforced prolongation of their break – now into its 136th day since the National Assembly last met – are considering some of the issues that a resumption of the National Assembly would throw up. They ought not to wait and guess.

Of course if the President makes good on his threat to exercise his power of dissolution then all bets are off and the issue would be about the spending authority of the Executive. Now that is a horse of a different breed, thoroughbred or otherwise.

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