`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’
Seven months after an opposition motion of no confidence against Home Minister Clement Rohee and interminable wrangling in the House and courts, Speaker of the National Assembly Raphael Trotman yesterday lifted the gag on Rohee and ruled that he would be able to fully participate in parliamentary life.
Trotman’s decision came despite an earlier public 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. Trotman yesterday revealed that at this meeting of the Privileges Committee on January 21 he stated that he did not believe that the National Assembly could inhibit Rohee from performing his functions as minister but that he deferred to both the opposition and government who wanted a final determination of Nandlall’s constitutional motion. Substantive arguments were recently completed and a final ruling by Justice Chang is expected shortly.
Trotman’s decision- contained in a 19-page document- 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 and he also made clear that his duty would not be constrained by the courts.
“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. Nonetheless, the National Assembly is legally, and intellectually, empowered and capable, to work out its own procedures and settle its own issues,” Trotman said in his ruling.
“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,” he said.
“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,” Trotman said.
“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,” he declared.
Trotman said that it is his clear and unambiguous intention to recognise Rohee’s right to fully participate in the business of the National Assembly without inhibition, restriction, or reservation. “It is the constitutionally correct position to adopt,” he said adding that 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.
The opposition’s no-confidence motion against Rohee had stemmed from what the parties described as poor performance.
Asked yesterday about his edict despite earlier stating that he would await a decision of the court, Trotman said that he had continued to do research after an initial ruling that he was not convinced that the House had the power(s) to pass, and enforce the Resolution proposed in the Motion. “I was convinced in my mind that my original decision was right,” he told Stabroek News adding that his research upheld that view. As such, he said, he did not need to await the court ruling on the matter.
Surmise
Nandlall yesterday said that in light of Trotman’s ruling, “the Chief Justice’s task, I surmise is now made even easier.” He said that Justice Chang in his initial ruling had ruled in a manner that the Speaker has now ruled. He said that the only reason that the Chief Justice was requested to resume the hearing of the case was because members of the opposition were attempting to “confuse the very clear pronouncements of the Chief Justice and they were manipulating their self-induced confusion to deny Minister Rohee’s right to speak.”
“Now with the Speaker’s ruling, the Chief Justice’s pronouncements already made and the clarifications which are expected to come ought to put the matter beyond the pale of any controversy,” he said.
In his ruling, Trotman noted that in Guyana, the Constitution is the supreme law of the land.
“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,” he said.
Unhindered
The Speaker recalled that last June, in 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, he had 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,” he said.
“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,” Trotman said.
Stating that quite apart from the privileged and protected rights of an individual Member of the National Assembly and citing Justice Chang’s ruling in this regard, Trotman declared “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,” Trotman said.
“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,” he declared.
“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,” he said.
Sanctions
Earlier in his ruling Trotman had posed the question about whether a majority could impose sanctions on a member and, if so, in what instances. His position, he said, was 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.”
Pointing out that the Guyanese constitution is silent on the matter of individual ministerial responsibility he raised the question of what happens if a motion of no-confidence is passed against a minister and cited a case in Queensland Legislative Assembly in Australia in 1997.
There, a motion of no-confidence was passed against the Attorney General who was not dismissed neither did he resign. The matter was sent to the Privileges Committee and the majority ruled that the failure to resign was not a breach of privilege as the no-confidence resolution was not binding and therefore unenforceable.
Trotman also cited a House of Commons November 2012 paper by Oonagh Gay on the matter of individual ministerial responsibility which stated that “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.”
Also referred to by Trotman was the 2000 edition of the Canadian House of Commons Procedure and Practice where the Speaker was described as the “guardian” of the rights and privileges of members and of the House. Therein, the right of a member to speak was 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 constituent”.
It is now left to be seen what the opposition will do as a result of the ruling. When she deputised for Trotman, Deputy Speaker Deborah Backer disallowed Rohee from speaking. On previous occasions, when they refused to permit Rohee to speak, the opposition MPs created a din and on another occasion walked out of Parliament when he rose to speak. On some of these occasions, Trotman was hard-pressed to maintain order.
