President has no power to decide bills unconstitutional

-former Chief Parliamentary Counsel

Neither the President nor any member of his cabinet has any form of authority to make interpretations of the Consti-tution enabling them to state with authority that legislation passed in the National Assembly was unconstitutional, says former Chief Parliamentary Counsel Bryn Pollard.

Additionally, he said that the practice of sending legislation passed in the House to the Chambers of the Attorney General (AG) to be vetted prior to being sent to the President for his assent cannot be justified by any of Guyana’s laws.

This practice, Pollard said, is a relic of the years when Guyana, then British Guiana, was a colony of Great Britain.

Bryn Pollard
Bryn Pollard

AG Anil Nandlall had previously maintained that it was convention for the AG to issue assent certificates to bills passed by the National Assembly before forwarding them to the President for his assent. This he claimed was to ensure that they were in keeping with legal requirements.

Most recently the question has arisen in connection with the local government bills passed in the National Assembly last month but which are still with the AG’s office.

Speaking at a press conference in February, Nandlall justified his involvement in advising the President on whether to assent to bills passed in the National Assembly in January  – in this case The Fiscal Management and Accountability (Amend-ment) Bill 2012 and the Former Presidents (Benefits and Other Facilities) Bill 2012 –  by citing Article 112 (1) of Guyana’s Constitution.

The Article reads: “There shall be an Attorney General of Guyana who shall be the principal legal adviser to the Government of Guyana and who shall be appointed by the President.”

After being prepared by Clerk of the National Assembly Sherlock Isaacs, the bills were sent to the AG’s Chambers in February but never reached the President’s desk until March 3.

Despite the AG’s citation of Article 112 of the Constitution, Pollard, who helped in the drafting of Guyana’s 1966 Constitution, as well as that of Namibia, maintains that the practice is ill informed.

He told Stabroek News that during colonial rule, legislation passed by British Guiana’s legislative body, the Legislative Council, could be disallowed by Her Majesty the Queen.

The Governor also reserved powers relating to legislation in respect of international relations and external defence. These powers were held by the colonisers since British Guiana had no government of its own, and all legislation passed by the Legis-lative Council was therefore sent to the monarch’s Attorney General to be scrutinized.

With the advent of self-governance in 1961, however, the Queen’s power of disallowance ceased, and five years later the Governor’s reserved power also ceased. Pollard said that the act of sending bills to the AG to be vetted should have ceased subsequent to 1966, and reiterated that there is no justification for this practice.

Isaacs has confirmed Pollard’s statements on several occasions and explained that he has continued the practice partly because it has been the custom, but mainly because his office lacks legal counsel to give advice on the preparation of bills after they have been passed.

Isaacs says that a request was made to the Public Service Ministry in March for the necessary vacancies to be created at Parliament building. The ministry, however, has not yet acknowledged receipt of the request, and its minister, Jennifer Westford, has refused to comment on the matter.

 

The President’s opinion

After refusing to assent to the two “opposition bills” in March, Ramotar explained that his decision was justified since both of them were “unconstitutional”. In relation to the Fiscal Management and Accountability (Amendment) Bill passed on January 10, 2013, the President said “In my opinion, the Bill is violative of the Constitution and by virtue of Article 8 of the Constitution, is unconstitutional, null and void and of no effect.”

With respect to the Former Presidents (Benefits and Other Facilities) Bill 2012 passed on January 25, 2013, the President argued that the bill was in conflict with several of Guyana’s laws which made them, “in my opinion, violative of the Constitution, null and void and of no effect.”

Pollard however said that under the constitution neither the President nor the AG had powers to interpret it; only the judiciary was vested with the authority to do that. As such therefore Ramotar’s statements about the bills violating the constitution were themselves not in accord with constitutional requirements.

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