Dear Editor,
There are two ministers of government who have taken and subscribed to the oath of office as members of the National Assembly and are sitting members thereof, but who are not lawfully and constitutionally qualified to be members of that august body. Their presence in the National Assembly is, therefore, unlawful and unconstitutional.
It is the constitution and to a lesser extent, the Representation of the People’s Act, Chapter 1:03 that determine who is qualified to be a member of the National Assembly. By virtue of Article 8, the constitution is the supreme law of Guyana, and any other law which is inconsistent with it, is void to the extent of that inconsistency. So if there is a conflict between the constitution and the Representation of the People’s Act, the constitution shall prevail.
Members of the National Assembly fall into two categories: those who are elected members of the National Assembly and those who are non-elected members of the National Assembly. Elected members of the National Assembly have a right to vote therein. Non-elected members do not.
An elected member of the National Assembly is defined by Article 232 of the constitution as “any person elected as a member of the National Assembly pursuant to the provisions of paragraph (2) of Article 60 or Article 160 (2).”
Under our constitutional and electoral system, individuals do not contest elections. Lists of persons do. The electorate votes for a list of candidates and not for a candidate. Article 160 of the constitution provides, inter alia, for the allocation of seats to those lists of candidates in proportion to the number of votes cast in favour of those lists. Each list is expected to field 65 candidates. When any of those lists are allocated one or more seats in the National Assembly, theoretically, that entire list is elected to the National Assembly, though not all 65 members will be able to take up seats in the National Assembly at the same time.
Based upon the number of seats allocated, having regard to the number of votes cast, the Representative of the List, extracts from the list the names of the persons whom he selects to take up seats in the National Assembly. These instructions are forwarded to the Chief Elections Officer who publishes a notice to this effect in the Official Gazette pursuant to section 98 of the Representation of the People’s Act. These persons then become members of the National Assembly with a right to vote therein.
Confusion may have arisen in relation to who is an elected member of the National Assembly because of the language used in Section 98 of the Representation of the People’s Act. That section actually refers to the members extracted from the list as “elected Members of the National Assembly.” However, the constitution, both in Articles 160 and 132, is unequivocal and unambiguous in relation to who is an “elected Member.” Article 160(1) (c) for example, provides “the seats of the said elected Members in the National Assembly, as determined under this paragraph, shall be allocated between the lists…”
It is clear that members from a list that has won one or more seats in the National Assembly are constitutionally recognized as elected members even before the seats are finally allocated to that list, and obviously, long before the extraction of their names from any list.
The constitution is, therefore, pellucid on who is an elected member. It is trite law that ordinary legislation cannot be used to interpret the constitution. As I have stated earlier, any other law that is inconsistent with the constitution will be void to the extent of that inconsistency.
Apart from the Speaker, non-elected members of the National Assembly owe their existence and derive their lawful sustenance from the conjoint language of Articles 103 (3) and 105 of the constitution. They provide as follows:
Art. 103(3) “Not more than four Ministers and two Parliamentary Secretaries shall be appointed by the President from among persons who are qualified to be elected as members of the National Assembly.”
Art. 105 “A Minister who was not an elected member of the Assembly at the time of his or her appointment shall (unless he or she becomes such a member) be a member of the Assembly by virtue of holding the office of Minister but shall not vote in the Assembly.”
It is under these provisions that a technocrat minister holds a seat in the National Assembly as a non-elected non-voting member. However, a careful reading of 103 (3) and 105 lends to the inescapable conclusion that they do not apply to “elected Members” of the National Assembly, but only to persons “who are qualified to be elected as Members of the National Assembly.” Indeed Article 105 opens with the qualifying words “a Minister who was not an elected Member of the National Assembly…”
In other words, a person who was on a list of candidates that won a seat in the Parliament and who is therefore “an elected Member of the National Assembly” cannot become a technocrat minister and hold a seat in the National Assembly under Articles 103 (3) and 105.
It is an undisputed fact that Winston Felix and Keith Scott were on the National Top-Up List of Candidates for the APNU +AFC list of candidates for the May, 11th 2015, General and Regional Elections. That list was allocated 33 seats in the National Assembly by Gecom. They are therefore elected members of the National Assembly. However, these two persons were not extracted from that National Top-Up List of Candidates to become members of the National Assembly.
However, they have both been appointed ministers of the government, and on the 11th day of June, 2015, they both subscribed and took the oath of office as members of the National Assembly of the 11th Parliament of Guyana. As their names were not extracted from the list they have, presumably, been placed in the National Assembly as technocrat ministers, purportedly, pursuant to Articles 103 (3) and 105 of the constitution. However, as I have adumbrated earlier, they are “elected Members” of the National Assembly and therefore are not captured by the language, spirit and intendment of the persons contemplated and provided for by Articles 103 (3) and 105 of the constitution.
In short, Winston Felix and Keith Scott are constitutional trespassers in the National Assembly.
Yours faithfully,
Mohabir Anil Nandlall
