Speaker rules that Rohee will participate fully in Parliament

Speaker Raphael Trotman today ruled that Home Affairs Minister Clement Rohee will be allowed to fully participate in all facets of parliamentary life despite a successful opposition motion of no confidence against him.

Trotman’s decision came despite an earlier position that he would await a ruling of the court on a case brought by Attorney General Anil Nandlall which had challenged the Speaker’s decision to limit Rohee’s participation in Parliament until the Privileges Committee of Parliament had ruled on the issue. Trotman later stayed the move to the Privileges Committee saying that he would await the ruling by Chief Justice Ian Chang. Justice Chang issued an interim ruling which none of the parties in the matter found acceptable.  The Privileges Committee then met and it was agreed that the decision of the court would be awaited. Substantive arguments are currently being heard and Justice Chang will then make a final ruling.

Trotman’s decision cited various Commonwealth precedents of no-confidence motions being passed against ministers but he grounded his final ruling in the need to defend the Constitution’s injunction to uphold the rights of all members.

“It is apparent to me that I must uphold the Constitution of Guyana in interpreting this issue. The exercise of my duty should not be interfered with, or fettered, by the Courts, or be determined by the outcome of the issue before the Courts; though we are both respectful of, and grateful for, opinions and interpretations provided by the High Court from time to time.[1] Nonetheless, the National Assembly is legally, and intellectually, empowered and capable, to work out its own procedures and settle its own issues.

“With that said I firmly believe that in its efforts to enforce its rights, the National Assembly cannot, except as provided for in the Constitution, and the Standing Orders of the National Assembly, derogate from the rights of any individual Member of Parliament; irrespective of what the opinion of the others Members is of that individual Member. The continuation of a restraint by the Speaker, on the Hon. Minister Clement J. Rohee, M.P. to speak, and to present Bills, Motions, and Questions, will constitute a serious derogation of his rights – both as a Member of this august House, and as a Minister of Government.

“I believe that the correct course of action to take would be to allow the Hon. Minister Clement Rohee, M.P. the right to participate fully and unhindered in the business of the National Assembly both in his own right as an elected Member of Parliament, and as the individual designated by His Excellency the President to be the Minister of Home Affairs.

By this Ruling, the House is notified that the Motion in issue, in the name of the Hon. Leader of the Opposition, Brig. (Ret’d) David A. Granger, M.S.S., M.P., though appearing correct in form is, in my considered opinion, against the Constitution, the established practices, principles, customs and privileges of the Hon, Member Clement J. Rohee, M.P. this House, and the Westminster parliamentary system that we subscribe to, and practice.

“Henceforth, I would be recognising in Hon. Clement J. Rohee, the full and privileged rights guaranteed under the Constitution to a Member of the National Assembly, and to that of a Minister of the Cabinet. ”

Speaker Raphael Trotman

Speaker Raphael Trotman

 

 

 

The full decision issued today follows:

Ref: No. 2-2013

PARLIAMENT OF GUYANA

SPEAKER’S CHAMBERS

PUBLIC BUILDINGS,

BRICKDAM,

GEORGETOWN

 

RULING OF THE SPEAKER ON THE CONTINUED RESTRAINT ON THE RIGHT OF HON. MINISTER OF HOME AFFAIRS CLEMENT J. ROHEE, M.P. TO SPEAK AND PARTICIPATE, IN THE BUSINESS OF THE NATIONAL ASSEMBLY

 

The matter of whether Minister Clement Rohee can be restrained from speaking, in his Ministerial capacity, by the National Assembly is really a simple one. We have made it complex.  We know already that the issue as to whether the Speaker can prevent a Member from speaking, presenting Bills, Motions and questions, has been settled as reflected in my ruling given on November 8, 2012.[1]

Similarly, the learned Chief Justice in his ruling of January 2013 had given his opinion on the question of whether an elected Member of the National Assembly can be prohibited from speaking or making any presentations in the National Assembly. The learned Chief Justice opined thus:

It is difficult to see how, in the face of the doctrine of separation of powers, the Speaker can prohibit a member (particularly an elected member) from speaking or making a presentation in the National Assembly on account of the absence of confidence of the majority of the members of the Assembly in that person qua an executive Minister when he sits in the Assembly not qua Minister of the Government but qua member of the National Assembly.

In coming to the above opinion, the learned Chief Justice cited Article 171 (1) of the Constitution:

Subject to the provisions of this Constitution and of the rules of procedure of the National Assembly, any member of the Assembly may introduce any Bill or propose any motion for debate in, or may present any petition to, the Assembly and the same shall be debated and disposed of according to the rules of procedure of the Assembly.

This constitutional provision, in the opinion of most, is sufficient to conclude the debate on the issue of whether the Minister, as a Member of Parliament, or any Member of Parliament for that matter, can be restrained in any manner whatsoever.[2] As potent as it is however, I do believe that far more has to be discussed and dilated.

The issue that falls to be considered is whether the House, acting through a majority, or unanimously, can impose sanctions on a Member, and if so, in what instances. For the reasons set out below, I am of the firm opinion that the National Assembly can only exercise a supervisory and disciplinary jurisdiction over a Member who has fallen into error of the Standing Orders, but such authority cannot carry over to the Ministerial portfolio of a Member; except as authorised by the Constitution. The decision to dismiss a Minister is solely that of the Executive President. Likewise, the decision of a Minister to resign is solely that of the individual Minister.[3]

Guyana has an interesting system of governance – with an elected President who is both Head of State and Government. The President constructs his Ministerial Cabinet from the elected Members of the Assembly; though Article 103 (3) permits a maximum of four (4) “non-elected” or technocratic Ministers, and two (2) Parliamentary Secretaries to be appointed to the National Assembly to aid the President in the discharge of his functions.[4]

Some questions that must be answered are: What is the position with the power and authority over these Ministers? Are Ministers answerable to the Executive President, or the National Assembly, or both? Are the rights, privileges and responsibilities of an individual Member any different from that of a Minister and are they severable?

It is accepted that Ministers can only be hired and dismissed by the Executive President. It is also accepted that the Government must enjoy the confidence of the National Assembly to continue in office. What then is the position for an individual Minister?

To better understand the nature of the issue I have had to resort to several primary and secondary sources; including, the Constitution of Guyana, the Standing Orders of the National Assembly, the legal opinions of Mr. Rex H. McKay, S.C, and Mr. Stephen Fraser, the reasoning of leading parliamentary practitioners within, and outside the region, and most importantly, the findings of various officers of the Parliaments of the United Kingdom and Australia that I found very useful.

 

Standing Orders of the National Assembly

Standing Orders 46 and 47 deal with discipline and order, and set out the procedure to be adopted where a member(s) is alleged to have violated the Standing Orders. Failure to resign following the adoption of a “no-confidence” or censure Motion is not such a matter captured, or contemplated, in these Standing Orders; though Standing Order 47(10) does give the House sweeping powers to proceed “against any member according to any resolution of the Assembly”. However, it is my considered opinion that the interpretation and application of Standing Order 47(10) must be within the context of that which came before, that is to say, issues of discipline and restoring order in the House.  In my opinion the ejusdem generis rule of interpretation has to be applied.[5]

Standing Order 113 stipulates that where the Standing Orders of the National Assembly of Guyana are silent, 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…” However, as will be seen below, the Standing Orders of the United Kingdom’s House of Commons can offer no guidance or solution to this situation as it is not one contemplated as likely to arise within their House.

 

The Guyana Constitution -Article 51 -There shall be a Parliament of Guyana, which shall consist of the President and the National Assembly.

It is apparent that there is an equal and symbiotic relationship between these two institutions – the Presidency on the one hand, and the National Assembly, on the other. Neither, in my considered opinion, is superior to the other. In fact, it appears definite that the framers of the Constitution designed the governance system to ensure coherence, consistency and compatibility.

The details of the Presidency, and the use of Executive power, are set out in Articles 89 thru to 118 of the Constitution. The President, being Head of State and Government, has the executive authority of Guyana vested with him/her. Such powers as vested in Article 90 “may be exercised by him either directly or through officers subordinate to him.”

Article 106 establishes that there shall be a Cabinet comprising the President, the Vice-President, and such other Ministers as may be appointed to it by the President. In the performance of its functions, the Cabinet is collectively responsible to the Parliament.[6] Interestingly, the Constitution says nothing about the individual responsibility of a Minister, but it cannot be denied that Ministers are also individually responsible to the Parliament. However, that responsibility is of an obviously different nature as it pertains to the National Assembly’s powers to oversee and scrutinise the work of Ministers and the Ministries and Departments falling within the ambit of their portfolios.

It is easy to argue that if there is collective responsibility, then individual responsibility must be included as being within the contemplation of the framers of the Constitution to the extent that if there is a vote of no-confidence in a Minister, then that Minister is bound to resign. This interpretation however, does not appear to have been accepted within the Commonwealth. On the contrary, it is perhaps just as easy to argue that if the framers of our Constitution intended individual Ministers to be responsible to the Parliament, they would have so stated.

 

Ministerial Responsibility

Much has been said and written about ministerial accountability and responsibility to the Legislature. A commendable encapsulation of the principle was stated by a former Speaker of the Queensland Legislative Assembly of Australia at a 2007 symposium convened to discuss the very issue of parliamentary accountability and ministerial responsibility:

The role of a Westminster Parliament is essentially twofold. It provides the forum required for representatives of the community to make laws and supply the personnel of both the government of the day and Her Majesty’s opposition. But it also, importantly, establishes an accountability regime to which the Executive must report. These two particular features of governance are central tenets of the Westminster system.

The hallmark of the Westminster system is ministerial responsibility. Ministers being drawn from the ranks of members of parliament must be accountable to the body that establishes their legitimacy and are always envisaged to be individually responsible as well as collectively responsible. The effectiveness of the Westminster parliamentary system therefore depends largely on the robustness of parliamentary scrutiny in holding Ministers to account. It is fair to say, however, that government has also grown much more complex since the conventions of individual ministerial responsibility were first formulated. This has required Ministers to increasingly delegate to others – making it, I think, unrealistic to hold Ministers personally liable for everything done within their department.[7]

The Guyana Constitution is silent on the issue of individual ministerial responsibility and speaks only of a collective responsibility. Article 105 (6) of the Constitution spells out that the Cabinet, including, the President, shall resign if the Government is defeated on a vote of “no confidence” by a majority of the Members of the National Assembly.

Is it to be presumed that if the Government must resign following a “no confidence” vote, then the Minister against whom a vote of “no confidence” is passed by a majority has an obligation to act similarly? This question was dealt with in Australia where on the 20th August, 1997, the Queensland Legislative Assembly passed a “no-confidence” Motion against the then Attorney-General, the Hon. Denver Beanland, M.P. Subsequently, the Attorney-General was not dismissed by the Premier, and neither did he resign; a situation that mirrors that in Guyana with respect to the Hon. Minister of Home Affairs.

Thereafter, the issue of what could be done to compel the Minister to resign, was referred to the Privileges Committee and the majority found that the failure to resign did not constitute a breach of privilege or contempt because the Resolution was non-binding and therefore unenforceable; further, the decision not to resign did not obstruct or impede the House in the performance of its duties and functions.[8]

In offering a comment on the non-resignation of Minister Denver Beanland, the former Queensland Speaker, Hon. Mike Reynolds, affirmed the view that “no-confidence” motions passed against an individual Minister are non-binding. After pointing out that the Queensland Constitution made the Cabinet collectively responsible to the Parliament, he went on to state:

There is no clause in the Queensland Constitution that requires individual ministerial responsibility to the Parliament. It is on this very point that a former Queensland Attorney-General relied when he was the subject of a successful vote of censure passed with the vote of an Independent who held the balance of power in the Legislative Assembly at that time. The then Attorney-General, Denver Beanland declined to resign because the decision for which he was censured was a decision of a cabinet and a vote of censure of the government of the day had not been passed. [9]

The issue of the non-resignation of Attorney-General Beanland was itself the subject of an article entitled: The Effect of a Parliamentary Vote of No-confidence in a Minister: An Unresolved Question in which Professor Geoffrey Lindell (University of Adelaide, Australia) argued that the failure of a Minister of Government to resign is distinguishable from a failure of a Government to resign following the passage of a no-confidence motion.[10] It was his opinion that:

It does not follow, however, that the same consequence should result from a vote of no confidence in an individual Minister who refuses to resign. I believe that alternative mechanisms exist for dealing with such an eventuality. The most important of these is the ability of the parliamentary majority to treat the failure of a government to remove an offending Minister as itself an issue of confidence in that government. In other words it would be open to the majority to vote the government out of office if it felt strongly enough about the matter.

Later in his discourse on the issue of the non-resignation of a Minister, Professor Lindell went on to say:

Other possible options include the refusal of the Parliament to deal with legislation initiated by the offending Minister or the refusal to appropriate funds needed by that Minister for the performance of governmental functions relevant to the Minister’s portfolio, although the latter would in all probability lead amount to a vote of no confidence in the Government.

More recently, in November 2012, the House of Commons published a position paper authored by Oonagh Gay, and entitled: Individual Ministerial Responsibility.[11] The report itself stated:

Ministers inform and explain, apologise, take remedial action, or resign in support of the convention of ministerial responsibility. This is not an area regulated by statute, rather practice has developed according to precedent and guidance…Ministerial responsibility is often described as a constitutional convention, yet it is a convention difficult to define with certainty and which, to a large degree, depends on the circumstances of each individual case.    

In respect of their ministerial duties, the conduct of Ministers is a matter for the Prime Minister rather than the Parliament.

 

When Do Ministers Resign?

Research has shown that for the most part, there are three (3) general categories of resignations of Ministers. Interestingly, the vote of no-confidence has not been proven to empirically establish that a Minister must resign in such a circumstance.

The three generally recognised categories are:

  1. When they make a personal error such as commit either a private indiscretion or political misjudgement;
  2. When the Minister cannot support a government policy;
  3. When the Minister is clearly directly responsible for a major error, and when found out, misleads the House.[12]

 

Paramountcy of Parliament/National Assembly

The idea that the Parliament is sovereign and supreme was given recognition following the violent upheavals that took place in the United Kingdom. Author, D. L. Keir, writing in The Constitutional History of Modern Britain 1485-1951[13], wrote at pages 230 and 231 that the Restoration of the Monarchy in 1660 was:

 Essentially a return to government by law…A return to the basis of government established by 1642 involved, in fact, the acceptance of a system in which the Houses of Parliament and the courts of Common Law could become predominant.

Thomas Erskine May, in 1844, published the first edition of the Treatise on the Law, Privileges, Proceedings and Usage of Parliament in which he adumbrated the hallowed principle of legislative supremacy thus:

The legislative authority of Parliament extends over the United Kingdom, and all its colonies and foreign possessions; and there are no other limits to its power of making laws for the whole empire than those which are incident to all sovereign authority – the willingness of the people to obey, or their power to resist. Unlike the legislatures of many other countries, it is bound by no fundamental charter or constitution; but has itself the sole constitutional right of establishing and altering the laws and government of the empire. (Emphasis mine).

In the book How Parliament Works by Robert Rogers and Rhodri Walters (6th ed), at page 81, the following truism is stated of the United Kingdom Parliament:

Legislative supremacy is essentially a legal concept, and it manifests itself in a number of different ways. For example, the courts of law are under a duty to apply legislation, even if that legislation might appear to be morally or politically wrong…Moreover, unlike other countries with written Constitutions – the United States for example – it would not be possible to challenge an Act of the United Kingdom Parliament in the courts on the grounds that it was ‘unconstitutional’.

The difference between the supreme powers of the National Assembly of Guyana, and that of the House of Commons, is immediately evident. There is no such concept in Guyana because in Guyana, unlike the United Kingdom, there is a written Constitution, and that Constitution, and not the Parliament, is supreme, as established by Article 51 of the Constitution of Guyana.[14]

In Guyana, the Presidency and National Assembly are creatures of the Constitution. Neither can relate with each other outside of the manner prescribed within the Constitution. For that reason, the National Assembly cannot refuse to entertain a Member who is appointed by the Executive President as a Minister except as permitted by the Constitution. In the same way that the Executive President cannot withhold his assent for Bills passed by the National Assembly except as set out in the Constitution, which is supreme.

In June, 2012, I had given a ruling about the right of the Executive branch to seek legislative approval to finance its budget in instances where the National Assembly had previously refused its approval. I ruled that the Executive must have the unhindered right to approach the National Assembly as often as it desires so to do, and likewise, the National Assembly has a  constitutional duty to open the door and listen to the Executive’s petition to approve such funding. The National Assembly may say no, or yes, with, or without amendments, but cannot prevent the Executive’s request.[15]

Because all executive power vests in the President, a person designated by him as a “Minister” is for all intents and purposes, his “representative”. It is my considered opinion that refusing the right to a Minister to address the House is tantamount to refusing the President the right to speak in the House; a very unconstitutional and untenable situation. The National Assembly can refuse to listen, but it cannot restrict the right of the President to speak, or that of his representatives, to speak and to fully participate in the business of the National Assembly.[16]

Quite apart from the privileged and protected rights of an individual Member of the National Assembly (adumbrated by the learned Chief Justice, Hon. Ian Chang, C.C.H., S.C., in his ruling dated January 11, 2013 in: Attorney – General of Guyana -vs- David A. Granger and Raphael Trotman – 94CM/2012), there is, in my considered opinion, the additional right imbued in the President to name his representatives in the persons of Ministers. If any of these representatives by their actions, offend the rules and procedures of the National Assembly, then the National Assembly has the sole jurisdiction to address matters pertaining to their unparliamentary conduct and behaviour. If, on the other hand, their actions pertain to some events or circumstances outside of the House that demands a sanction, then the President is the sole authority to address same.

It is therefore axiomatic, in my considered opinion, that the National Assembly, whether acting through a majority, or unanimously, cannot restrict the right of a Member, or a Minister, to address the Assembly; except as provided within in the Constitution, and no such provision can be found within the Constitution of Guyana. In a manner of speaking therefore, a Member of the National Assembly, who is designated a Minister of Government, has dual rights and responsibilities, and these are mutually exclusive.

The point must be made as well that individual ministerial responsibility and accountability in a strict Westminster construct, is not the same as that in a system that has an Executive Presidency, or a hybrid Westminster/Executive Presidency such as is the case in Guyana.

 

The Position In Other Jurisdictions

In support of my previous ruling given on the 8th November, 2012 on the right of the Honourable Member Mr. Clement J. Rohee, M.P. to participate in the House as Minister of Home Affairs, I have continued to carry out research, and to canvass the views and opinions of knowledgeable persons in other Commonwealth jurisdictions. I have received consistent responses to the effect that, a legislature operating in the Westminster construct, cannot legally prevent a Minister from speaking or carrying out his/her ministerial functions in the House. The situation in the United States was also looked at including, the most recent incident of Attorney-General Eric Holder being found guilty of contempt of Congress for failing to provide documents in the Congressional probe of the Justice Department’s “Fast and Furious” Operation that had gone awry.[17]

In the United Kingdom’s House of Commons, the position is clearly discerned from the responses given on 5th December, 2012, by Mr. Crispin Poyser and Mr. Liam Laurence Smyth, Clerks of the House of Commons, to a series of questions posed by me:

  1. 1.       Is the non-resignation of a Minister following a vote of no-confidence a violation of any Standing Orders?  Not in the UK.
  2. 2.       Is the non-resignation of a Minister following a vote of no-confidence a violation of any conventions or practices? This depends on the country concerned. In the UK, it is hard to imagine a Minister surviving such a motion of censure and in this sense a failure to resign might be described as contrary to convention. As indicated in the previous note a Minister (Eric Varley) did not resign following such a motion in 1976; but it was supposed that the decision to pass a motion of censure in the form of an opinion that his salary be reduced by £1,000 was made by mistake and the adverse vote was in a broad sense reversed by a subsequent motion and vote. In the UK, the Government cannot lawfully raise taxes or spend money without parliamentary authority. If there is a majority prepared to withhold supply from the Government, the Government cannot in practice continue in existence and its fall is certain. Before getting to that point, there would almost certainly be a vote of no confidence in the Government as a whole. If no new Government could be approved by the House within the period specified by the Fixed-term Parliaments Act 2011, fresh elections would be held.
  3. 3.       Can the Minister be sanctioned or punished for not resigning? Not in the UK – formally, appointments of Ministers are made by the Head of State, whose decision (acting always on the advice of her Ministers – in effect her Prime Minister) is final.[18]

In Australia’s House of Representatives, there has only been one instance when a no-confidence motion was successfully passed against a Minister; being in the person of the Prime Minister himself. In that instance, the Governor-General dissolved Parliament and new elections were called. There, it is the House of Representatives Practice that “the question of the Minister or the Government continuing to hold office would be one for the Prime Minister to decide”.

In an email addressed to me on January 16, 2013, by Mr. Bernard Wright, Clerk of the House of Representatives of Australia stated the position as follows:

In our system, as I gather may be the case in Guyana, while the formation of a government is dependent upon the support of a majority in the House of Representatives, technically Ministers are appointed on the advice of the Prime Minister.

 Censure motions have been moved in the House against Ministers on many occasions. Motions of want of confidence in Ministers have also been moved in the House, although this has not been nearly as frequent as the moving of a motion of censure. According to our records however, on no occasion other than in exceptional circumstances in 1975 has a motion of censure of, or want of confidence in, a Minister been agreed to by the House. (In November 1975 a motion expressing want of confidence in the Prime Minister was carried, but this occurred after the Governor-General had withdrawn the commission of the former Prime Minister and commissioned the Leader of the Opposition to form a government while elections were to be held.)

 

The Role of the Speaker

The question may well be asked: Is the Speaker obligated to the Constitution, or to the National Assembly, in a moment of conflict of opinion and views? The hallowed words of the early English Speaker of Parliament, William Lenthall, uttered in 1640 in response to the then King Charles 1 who had come to the House of Commons to seize several Members for some alleged violations, have been relied on by Speakers since then to define and delineate their roles and responsibilities:

May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as this house is pleased to direct me whose servant I am here; and humbly beg your majesty’s pardon that I cannot give any other answer than this is to what your Majesty is pleased to demand of me.

Articles 56, and 157, together with the Standing Orders of the National Assembly, set out the method of election, and roles and responsibilities of the Speaker and Deputy Speaker.[19] They are creatures of the Constitution, and must respect and abide by it. It goes without saying that the Speaker, and his Deputy, are also servants of the House, and owe a duty there too. The House could not expect them to act except as in keeping with the Constitution.

The Speaker has a constitutional duty to act according to the Constitution in the discharge of his functions. In the Westminster type Parliament, observed and practised in Guyana, the Speaker is expected to be independent and impartial of political direction and considerations, and to divest himself of the day to day operations of his political party. The Hon. Michel Bissonnet, former Speaker of the National Assembly of Quebec gave definition to the nebulous concept of “impartiality” in a 2004 discussion on “The Impartiality of Speakership: A Round Table” in this manner:

What does impartiality in Parliament mean? To begin with, Speakers must defend the rights and privileges of all Members without exception. They must protect the rights of the minority by basing their decisions on the fundamental principles of the parliamentary system.[20]

The point being made here is that the National Assembly, even if it resolves to act, the Speaker, and for that matter, the Clerk as well, in attempting to give interpretation and effect to the Resolutions of the House, cannot act outside of the Constitution, and equally and just as importantly, the established practices, customs, principles and Standing Orders of the National Assembly. In the context of the 10th Parliament, this is an imperative for the Parliament to be able to function effectively.

In the year 2000 edition of the Canadian House of Commons Procedure and Practice, the Speaker is described as being the “guardian” of the rights and privileges of Members and of the House as an institution”. Freedom of speech is there considered to be the most important of the privileges accorded to Members of Parliament in Canada. The right of a Member to speak is described as:

…a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.[21]

In Canada, as it is also in Guyana, this right to speak is only circumscribed by the practice, conventions and Standing Orders of the National Assembly.

 

The Committee of Privileges

Following the Point of Order raised by the Hon. Attorney General and Minister of Legal Affairs on the 22nd November, 2012, when the Leader of the Opposition rose to commence the debate on the Motion seeking to restrict Hon. Minister Rohee’s right to perform the duties of Minister of Home Affairs, I entertained arguments, and at the end of which, referred the issue to the Committee of Privileges as it is my considered view and opinion that this is the appropriate Committee to consider such a issue.[22]

I did so because I was not convinced that the House had the power(s) to pass, and enforce the Resolution proposed in the Motion, and further, because I believed that notwithstanding the traditional role performed by this Committee to inquire into allegations of misconduct and violations of the Standing Orders by a Member, the Privileges Committee was eminently suited to review the legal and constitutional consequences and effects of the Motion proposed to the House.[23]

Consequent to my decision to refer the issue to the Committee of Privileges, a Constitutional Motion No. 94 of 2012 was commenced in the High Court’s Constitutional and Administrative Division by the Hon. Attorney-General to impugn my decision. On being named a Respondent in a matter of interpretation of the legislature’s authority yet again, and because I believed that notwithstanding the misguided role the High Court was being asked to play in these circumstances, it still had an expected responsibility as the guardian and interpreter of the Guyana Constitution, on 7th December, 2012, I indicated in a letter addressed to the Hon. Prime Minister, the Hon. Leader of the Opposition, and the Leader of the Alliance For Change, that I would await the interpretation of the High Court on the issues before proceeding further with the deliberations in the Committee of Privileges.

On 11th January, 2013, the learned Chief Justice gave a “preliminary” ruling; and on the 21st January, 2013, I convened a meeting of the Committee of Privileges. On that date, representatives of both the Government and Opposition requested that the meeting be adjourned sine die pending the determination of the Constitutional Motion.[24] In that meeting I explained that I was of the view that based on legal opinions, advice received from knowledgeable persons in other jurisdictions, and my own deliberate judgment, I believed that the National Assembly could not inhibit the Minister from performing the functions of Minister of Home Affairs. I, however, in deference to the requests made by representatives of both Government and Opposition, adjourned the meeting.

On Thursday, February 7, 2013, I was informed by the Government Chief Whip that it was the Government’s desire to have the Hon. Minister Clement Rohee make a Statement as a Minister on the security sector. I agreed for the previously stated reasons, which were that I believed that the nation, and Members of Parliament, needed an update on what was happening as there was a general sense that crimes were escalating at an alarming and unusual rate. I considered that these were good and compelling reasons for me to relax my ruling about a temporary restraint on the Minister’s right to speak. I also determined that given my research and analysis, there was an absolute inevitability in Minister Rohee being permitted to speak.

In the circumstances as described above, I considered that my previous decision to prevent the Minister from speaking pending the final hearing and determination of the Constitutional Motion, could lead to a manifest injustice. On February 7, 2013, he spoke for the first time since 30th July, 2012.

As for the future, it is my clear and unambiguous intention to recognise the right of the Hon. Minister Clement J. Rohee, M.P. to fully participate in the business of the National Assembly; without inhibition, restriction, or reservation. It is the constitutionally correct position to adopt.

As for the Motion being in the Committee of Privileges, it shall remain there until Members of the Committee indicate their desire to re-commence consideration of the issues.

 

Conclusion

It is apparent to me that I must uphold the Constitution of Guyana in interpreting this issue. The exercise of my duty should not be interfered with, or fettered, by the Courts, or be determined by the outcome of the issue before the Courts; though we are both respectful of, and grateful for, opinions and interpretations provided by the High Court from time to time.[25] Nonetheless, the National Assembly is legally, and intellectually, empowered and capable, to work out its own procedures and settle its own issues.

With that said I firmly believe that in its efforts to enforce its rights, the National Assembly cannot, except as provided for in the Constitution, and the Standing Orders of the National Assembly, derogate from the rights of any individual Member of Parliament; irrespective of what the opinion of the others Members is of that individual Member. The continuation of a restraint by the Speaker, on the Hon. Minister Clement J. Rohee, M.P. to speak, and to present Bills, Motions, and Questions, will constitute a serious derogation of his rights – both as a Member of this august House, and as a Minister of Government.

I believe that the correct course of action to take would be to allow the Hon. Minister Clement Rohee, M.P. the right to participate fully and unhindered in the business of the National Assembly both in his own right as an elected Member of Parliament, and as the individual designated by His Excellency the President to be the Minister of Home Affairs.

By this Ruling, the House is notified that the Motion in issue, in the name of the Hon. Leader of the Opposition, Brig. (Ret’d) David A. Granger, M.S.S., M.P., though appearing correct in form is, in my considered opinion, against the Constitution, the established practices, principles, customs and privileges of the Hon, Member Clement J. Rohee, M.P. this House, and the Westminster parliamentary system that we subscribe to, and practice.

Henceforth, I would be recognising in Hon. Clement J. Rohee, the full and privileged rights guaranteed under the Constitution to a Member of the National Assembly, and to that of a Minister of the Cabinet.

 

 

__________________________________

Hon. Raphael G.C. Trotman, M.P.,

Speaker of the National Assembly           

 

Dated this      day of February, 2013  



[1] See Ruling delivered on November 8, 2012 Ref: No. 10 of 2012.

[2] It is apposite to note that the Clerk of the National Assembly is definite in his opinion and belief, and has so advised, that a Motion coming from the National Assembly cannot override the absolute rights bestowed in Article 171 (1); a view that I endorse.

[3] In his unpublished manuscript entitled: Parliament of Guyana. From 1718-2006, Mr. Frank Narain, CCH, former Clerk of the National Assembly, refers, at page 189, to instances when Ministers discovered that they had “resigned” from the National Assembly without their knowledge.

[4] See Articles 103, 104, 105, 106 and 107 of the Constitution.

[5] Ejusdem generis is a Latin phrase meaning “of the same kind.” As a legal term it refers to a principle for interpreting the language of a statute. The rule of ejusdem generis says that when a generic description follows specific items, the more generic description is read to apply only to things belonging to the same group or class as the specific items.

[6] Article 106 (2)-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 the Parliament.

A simple definition of the collective responsibility of Cabinet is: Cabinet collective responsibility is constitutional convention in governments using the Westminster System that members of the Cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. This support includes voting for the government in the legislature. Some Communist political parties apply a similar convention of democratic centralism to their central committee.

Cabinet collective responsibility is related to the fact that, if a vote of no confidence is passed in parliament, the government is responsible collectively, and thus the entire government resigns. The consequence will be that a new government will be formed, or parliament will dissolve and a general election will be called. Cabinet collective responsibility is not the same as individual ministerial responsibility, which states that ministers are responsible and therefore culpable for the running of their departments. (http://en.wikipedia.org/wiki/Cabinet_collective_responsibility)

 

[7] Study of Parliament Group (Queensland Chapter) on Parliamentary Accountability and Ministerial Responsibility: What’s Working and What’s Not – Saturday, 21 April 2007.

[8] See: Responsible Government: Ministerial Responsibility and Motions of ‘Censure/’No Confidence’ by David Blunt – Australian Parliamentary Review, Spring 2004, Vol. 19 (1), 71-87.

[9] Study of Parliament Group (Queensland Chapter) on Parliamentary Accountability and Ministerial Responsibility: What’s Working and What’s Not

[10] Constitutional Law and Policy Review – Vol. 1, #1, May 1998 at pages 6-9

[11] Standard Note: SN/PC/06467, Parliament and Constitution Centre, dated 8th November 2012

[12] See: (1) David Blunt quoting the analysis of Elaine Thompson and Greg Tillotson in ‘Caught in the Act: The Smoking Gun View of Ministerial Responsibility, Australian Journal of Public Administration, 58(1), March 1999, (2) Australian Study of Parliament Group (Queensland Chapter) on Parliamentary Accountability and Ministerial Responsibility: What’s Working and What’s Not – Saturday, 21 April 2007, and (3) Ministers As Servants To Three Masters. An Empirical Analysis of Ministerial Accountability In Semi-Presidential Governments by Christina Bucur – Centre for International Studies, School of Law and Government, Dublin City University.

[13] 7th Edition, London, 1964

[14] Article 8- “This Constitution is the supreme law of Guyana”.

[15] See ruling Ref: No. 5 of 2012 on a Request to Disallow Financial Paper # 9, dated 13th June, 2012.

[16] Article 67 of the Constitution enshrines the right of the President to “at any time attend and address the National Assembly.”

[17] See: http://www.mainjustice.com/2012/06/28/in-historic-vote-house-finds-attorney-general-in-contempt-of-congress for discussion of the issue of the consequences of a finding of Contempt of Congress.

[18] Email exchange between Speaker Trotman and Messrs. Liam Laurence Smyth and Crispin Poyser, Clerks of the House of Commons.

[19] N.B. Significant Ruling by Speaker Hari N. Ramkarran, S.C., issued on 8th January, 2009, in which he ruled that the Standing Orders of the National Assembly fall within the legal definition of “written laws” as defined in Section 5 (1) of the Interpretation and General Clauses Act of the Laws of Guyana.

[20] Canadian Parliamentary Review/Summer 2004, page 4

[21] See page 261

[22] Standing Order 91- The Committee of Privileges: There shall be appointed a Committee to be known as the Committee of Privileges to consist of the Speaker as Chairperson and no less than six (6) or more than ten (10) members to be nominated by the Committee of Selection as soon as may be after the beginning of Each Session. There shall be referred to this Committee any matter which appear to affect the powers and privileges of the Assembly. It shall be the duty of the Committee to consider any matter so referred, and to report thereon to the Assembly.

[23] The Motion in the name of the Hon. Brig. (Ret’d) David A. Granger, M.S.S., M.P. and published on 2012-11-22 contained the following resolve clause: “BE IT RESOLVED: That since the National Assembly, by National Assembly Resolution No. 18 of 2012, has expressed no confidence in the performance of the Honourable Clement Rohee, M.P. as Minister of Home Affairs, that he be prevented from speaking in the National Assembly so long as he is purporting to carry out the functions of Minister of Home Affairs as published in the Official Gazette.”

[24] Sine Die –With no appointed date for resumption. (Concise Oxford English Dictionary, 11th Ed (revised) 2006)

[25] At page 23of the “provisional” ruling in Constitutional Motion No. 94 of 2012, the learned Chief Justice in recognising the limitations placed on the High Court to direct the National Assembly nevertheless stated: “…it behoves the Speaker and indeed the National Assembly as a whole to respect not only the finding of the court for reason of its finality but also the constitutional right of Mr. Rohee to represent his electors and their constitutional right to be represented by him in the National Assembly.”   



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