Arif Bulkan lectures in the Faculty of Law at the University of the West Indies
By Arif Bulkan
The issue of Presidential (non) assent to Bills is being discussed again, this time by Prem Misir in his reply to Christopher Ram. However esoteric this debate may seem to some, it deserves attention because it touches upon issues of governance, so critical in our fledgling democracy. Dr. Misir quotes Ms. Teixeira, whose scrutiny of the Constitution in general and Article 170 in particular led her to conclude that “There is no provision I can find in the constitution which states explicitly the time period for the President to assent. He merely has to signify whether he assents or not to the bill being presented to him.”
That is a misleading interpretation of the actual text, insofar as she states that all the President has to do is indicate whether or not he is assenting. In fact, the President must give reasons if he withholds assent. However, the more interesting question presented is whether, as Ms. Teixieira argues, the absence of an explicit provision in the Constitution is determinative of the issue as to the time (if any) within which the President must assent to Bills.
This requirement of assent to Bills before they become law is a relic of our colonial past. As explained by Tracy Robinson (the resident constitutional law expert at the University of the West Indies), the practice derives from royal prerogative, which historically inhered in Kings as the governors of the realm. But inasmuch as the royal prerogative conferred discretionary powers on a powerful sovereign, unwritten conventions evolved to guide the exercise of those powers. One of those conventions was that the monarch had to assent to Bills even though she possessed a discretion not to do so. The force of this convention is amply illustrated by the fact that the last time there was an exercise of a veto in Britain was in 1708 – more than 3 centuries ago.
But the issue is hardly resolved by what obtains in Britain. Guyana, after all, purports to be a constitutional democracy, and has been independent for more than 40 years. Successive governments have experimented with constitution-making in an attempt to fashion something indigenous for our peculiar context. At the least, therefore, the powers of the President must surely be of a different character than those of kings and queens. I can put it no more eloquently than Senior Counsel Miles Fitzpatrick, who asserted brusquely (in a passage that was later quoted with approval by Her Majesty’s Privy Council in London) that “…Guyana as a constitutional republic should not adopt the same reverential attitude to the prerogative. Republics have, or should have, little truck with royal grace and favour which are founded on the arbitrary will of kings.”
So what does our constitution say? It is true, as Ms. Teixeira asserts, that there is no explicit provision regarding the time within which the President must assent to Bills presented to him.
But this is not the end of the matter. Constitutions are not on the same level as deeds and contracts, but occupy a higher plane in which normative principles are stated, structures of government outlined and powers of the State fashioned. Its provisions cannot be plucked out and read in isolation, but must instead be construed holistically with a generous eye to its overall purpose. These are elementary principles of constitutional interpretation on which there is no judicial or academic dispute.
The provision in question, article 170, states that the President shall signify that he “assents or that he withholds assent” when a Bill is presented to him. It then goes on to outline a procedure that must be followed in any situation where he withholds assent, which includes stating the reasons why he did not assent and later compelling his assent within 90 days if the Bill is presented to him a second time. In other words, whatever the precise boundaries of this power as it exists in British constitutional law, under our constitution the President does not have a power of veto. All he possesses is the power to delay the passage of legislation, and to compel Parliament to consider whatever objections he has to the proposed law. If Parliament chooses to reject his reasons, they must do so by an enhanced majority – and if they do, the President is constitutionally bound to assent to the Bill within 90 days of its second presentation to him.
Since the constitution so meticulously outlines a procedure to compel the timely enactment of a law in situations where the Head of State has reservations, a fortiori where he has none then he must give his assent expeditiously. This is the inescapable conclusion because failing to assent expeditiously would defeat the purpose of the provision, which is clearly, unavoidably and unambiguously, the timely coming into force of laws that have been passed in Parliament.
The question also arises, for what legitimate reason would a President delay in assenting to a Bill? If he has objections, then he should abide by the constitutionally stated procedure and send the Bill back to Parliament with the reasons for withholding assent. If he has no objections, then it behooves him to sign the bill, and to do so expeditiously. If he does not send it back with a clear statement of his objections, and also fails to sign it, then one must ask whether his Office is simply inefficient and disorganized or, rather more disquieting, whether his intention is to subvert the constitutional procedure through the backdoor. In other words, his unexplained inaction may suggest an intention to arrogate to himself the power of veto by indirect means.
It should be cause for alarm that the incumbent has no qualms about evincing disrespect for the supreme law of the land, a tactic he has repeatedly practiced. In 2001, when the seventh Parliament was prorogued, at least one Act expired because of the President’s lack of assent. By the time the eighth Parliament was prorogued in 2006, the number of unassented Bills grew to ten. Considered along with other practices like refusing to confirm the appointment of acting Judges and other civil servants for no stated reason (a practice which the GPSU has repeatedly deplored), as well as the long-standing delays in acting on the advice of the Judicial Services Commission, the clear impression one gets is of an illusory democracy. Indeed, these events bring to mind the statement in an old American case that it is “from petty tyrannies…large ones take root and grow.”
There is another, more fundamental reason why the President ought to give his assent (if he so intends) expeditiously. Where Bills passed by the democratic process remain in limbo, this creates a situation of no positive law in an area where a separate arm of government (the legislature) has determined that there should be. Unexplained delays are an arbitrary frustration of the democratic will, a state of affairs that is incontestably inimical to the Rule of Law, the latter being a key norm of our constitution and one that undergirds its very structure.
Against the background of our very shameful history, which includes rigged elections, a Founder Leader who clothed himself with imperial-like powers in an earlier incarnation of this constitution, and consistent disregard for the independence of key institutions of government like the civil service, the failure to assent to Bills is yet another unwelcome piece of evidence of Guyana’s unending saga of constitutional manipulation and subversion. The serial manifestations of petty tyranny are all the more disappointing because they are being perpetrated by a political party which used to pride itself on opposing the absolute power of the British overlords and proclaimed its adherence to the Leninist doctrine of ‘democratic centralism’. In the end, the two principal parties in the National Assembly have created the conditions that breed Presidential non assent. Astonishingly, the Parliamentarians themselves voted in 2007 by passing the Recall Law for their party leaders to whip them into line at whim, and to set aside any pretense of the separation of powers. Arguably, the President is treating the National Assembly with the contempt it has heaped upon itself. As these charades play themselves out, our economy and society continue to deteriorate. More non assents anyone?