Article 101 of the Constitution was this month tested when Dr. Ashni Singh, an unelected Member of the National Assembly, was sworn in to act as Prime Minister. The Article states that “The President shall appoint an elected member of the National Assembly to be Prime Minister of Guyana…”
The press was convinced that Singh could not be appointed but the Office of the President (OP) ruled that “the appointment was well considered and is within the ambit of the constitution of Guyana.” No explanation was offered and one must therefore make assumptions about the logic of the ruling. Is it that OP considers that since Dr. Singh’s appointment was an acting one, the Constitutional limitation does not apply? If that logic is applicable, which I doubt, then it should also apply to corresponding constitutional powers in which case an acting President could not have appointed Singh. The Office of the President cannot have it both ways.
And let us take a very practical example. Let us apply this logic to the Audit Office and specifically the position of the Auditor General. Section 8 of the Audit Act 2004 provides that “The salary, superannuation, benefits and other conditions of service of the Auditor General shall be the same as those of the Chief Justice.”
Since the holder Mr. Deodat Sharma is not qualified to hold the substantive position as Auditor General and is therefore only acting in the position, would either Dr. Luncheon or Mr. Sharma tell us if he is entitled to and avails himself of the benefits of section 8 of the Audit Act including a tax-free salary?
My view is that the acting President does have the power to make the appointment but only of someone qualified under the Constitution, which clearly rules out Dr. Singh. And that only a properly qualified person – which would rule out Sharma – could act as Auditor General and enjoy the benefits of the law.