It cannot be unconstitutional for the majority of the people acting through their elected representatives to refuse to give their money to a former president

Dear Editor,

On 7th May, President Ramotar told Speaker of the National Assembly Raphael Trotman,  that he was withholding his assent to Bill Bo 29 – the Former Presidents (Benefits & Other Facilities) Bill 2012 which had been passed by a majority of the National Assembly. As Attorney-General Anil Nandlall has pointed out, “The President is not a mere rubber stamp of the National Assembly.”

However, even though he does not have to assent to every bill passed by the National Assembly, a President still cannot do as he pleases. If power is exercised without right, it is tyranny, even if the individual wielding the power is well-intentioned. Questions of government and power must be decided on the basis of principle not personality.

In Guyana a president’s power to withhold assent must be exercised in accordance with the law. How can we tell if it was?

It is a truism that a president of Guyana is subject to the rule of law. Therefore constitutional and statutory powers must be exercised in good faith. A president may withhold assent to a bill but he has to do so in good faith. His action must not be tainted by bias. He must be seen to be free of bias. For Bill 29, the President must show that he meets the following three conditions at least:

1. The President is not motivated by the fact that the bill originated with the opposition or by the fact that MPs belonging to the same party as himself voted against it;

2. The President is not influenced by the fact that the bill would alter the benefits allocated to a former president who belongs to the same political party as himself; and

3. The President is not influenced by the fact that he too will receive the same benefits when he stops being president.

If any one of these conditions has not been met, it is improper for the President to withhold assent.

If all three conditions are met, there is a further question. Did the President have a good enough reason for using his power to withhold assent? Article 170 of the constitution does not say what is a good enough reason. We have to fall back on the basic constitutional principle that a power must not be exercised unreasonably.

Several reasons have been stated for withholding assent to Bill 29, but none seems to be conclusive. The supremacy of Parliament to make law cannot be undermined by the limited doctrine of legitimate expectation which was developed to control administrative acts. The purpose of Article 142 is to protect individuals from being deprived of their property. A gratuity (a gift of appreciation) which is a charge on the Consolidated Fund, ie on public money, does not seem to fall within the definition of property. There is nothing in existence which can be transferred to someone else.

Also the obligation to make future payments can be removed by a simple repeal of the law which created the gratuity. If a former president does not have a constitutional right to the gratuity then other reasons for withholding assent cannot create any right to the gratuity.

Nevertheless it is worth noting that Articles 38B and 38D do not require the National Assembly to provide money to look after anybody’s child. If anything, Article 38D puts that obligation on the parents and guardians. Bill 29 does not take away the right of a former president to work.

The legislative intent may be that if any former president is capable of working and does work he should not continue to be a burden on the public purse. Bill 29 does not violate the presumption of innocence. The legislative intent may be that public money should not be given to somebody whose reputation is so dubious that even a court of law cites him for a criminal offence. Article 149 seems to be irrelevant.

The National Assembly has the power to decide how to spend public money. That power is subject to the requirement that the National Assembly must act in the best interests of the people of Guyana. Therefore the National Assembly must consider whether it is the best use of public money to pay for water, electricity, telephone, personal and household staff, clerical and technical staff, full time personal security and two first class return airfares for every former president as well as medical treatment for every former president and his dependants. They must consider the fact that there is currently no limit on the amounts that may become payable to a former president. They must consider whether there are more pressing needs in Guyana. In weighing up the competing needs of the people of Guyana, the National Assembly must take into account the fact that every former president is already entitled to seven-eighths of the salary he got when he was president. (That entitlement is not affected by Bill No 29.)

It would be unreasonable to exercise the power to withhold assent in such a way that it produces an absurd result. It cannot be unconstitutional for the majority of the people of Guyana, acting through their elected representatives, to refuse to give their money to a former president.

Although this may seem like a highly technical issue it should not be left to politicians and lawyers. Under Article 9, sovereignty belongs to the people. We all need to know what powers our president has and when he has a right to use those powers. We all need to know whether the elected MPs are acting in the best interests of the people.

The constitution protects our right to freedom of expression. We should use this freedom to share our views and to build a consensus about what is best for our nation.

Yours faithfully,
Melinda Janki

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