No-confidence motion against Rohee was constitutionally impermissible

Dear Editor,

In recent proceedings in the National Assembly on a no-confidence motion against the Minister of Home Affairs, Mr Clement Rohee, much emphasis was placed on the concept of ministerial responsibility as that concept is applied in Britain.

According to Professor HW Wade in his text on Administrative Law, page 29, “ministerial responsibility is one aspect of the supremacy of parliament under which ministers are responsible to it both individually and collectively through the cabinet.”

It is important to note immediately, that Britain does not have a written constitution as Guyana does.

In Britain, it is the supremacy of Parliament that is recognized. The courts in Britain cannot strike down an Act of Parliament as the courts of Guyana can. In this country our constitution is the supreme law and it is the supremacy of the constitution that is recognized. In the constitutional framework of Guyana, there is no provision for individual ministerial responsibility to Parliament. The constitution makes provision for cabinet’s collective responsibility to Parliament.

Article 106(2) of the Constitution provides:

“The cabinet shall aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefor to Parliament.”

In India, the concept of “collective responsibility” of the cabinet to Parliament is, like Guyana, also provided for by the Indian constitution.

It is said that this collective responsibility is joint and indivisible. 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.

The no-confidence motion against Minister Rohee, stemmed from an allegation of police excesses at Linden recently. Note is to be taken of section 7 (1) the Police Act which provides:
“7 (1): The Commissioner shall, subject to the general orders and directions of the Minister, have the command and superintendence of the Force, and shall be responsible to the Minister for peace and good order throughout Guyana…”

It could not reasonably be argued that the Minister has responsibility for the day-to-day management, superintendence and command of the Police Force. It is evident that such directions as the minister can give to the commissioner would be administrative in nature and would relate to the command and superintendence of the Force. The minister does not give the commissioner operational instructions, directions relating to effective policing and law enforcement.

In a decided English case, the judge, speaking of the role of the commissioner of police in Britain observed:

“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 the 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 on him…” (Per Lord Denning in R v Commissioner of Police ex p Blackburn (1968) 2 QB 150).

In this context one notes the statement by Professor de Smith in his text, Constitutional And Administrativ Law page 164:

“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 nationalized industries and many other public corporations or most of the activities of local government authorities of the police.”

Given the above and in the context of the constitutional prescription of the collective responsibility of the cabinet to Parliament, and when the opposition’s motion of no confidence is scrutinized, the position in India with similar constitutional provisions becomes extremely instructive. In India, the prevailing legal position is that:

“In view of the express constitutional provision regarding collective responsibility of the Council of Ministers to the Lok Sabha, a motion expressing want of confidence in an individual Minister is out of order: under the rules, only a motion expressing want of confidence in the Council of Ministers as a body is admissible.”

It would appear, therefore, that if the National Assembly could not or should not have proceeded against the Minister individually, then no legally permissible consequences can flow from the opposition’s motion of no confidence, which was approved only because the opposition used its threadbare numerical strength in the house to pass a motion which ought not to have been put up for debate in the first place, given its unconstitutional focus. So those proceedings attract the maxim – ex nihilo, nihil fit – out of nothing, cometh nothing.

If, therefore, consequential action is contemplated against Minister Rohee, (who should undoubtedly retain his seat in the National Assembly) then such contemplated action should be the basis for challenge of the constitutionally impermissible motion as well as any contemplated action therefrom. If the opposition seeks from the motion to unseat Minister Rohee, their expectations in that regard would be misconceived and misguided.

Interestingly, in 1950 US Secretary of State Dean Acheson, came under heavy criticism from 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 Dean Acheson as Secretary of State. Acheson voluntarily retired from office three years later.

Yours faithfully,
Hydar Ally

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