The President has untrammelled freedom to assent to and withhold assent from Bills

Dear Editor,

 

The exercise of the President’s power to withhold his assent from Bills passed by the National Assembly continues to evoke commentary in the public domain.  Some of those who offer comments enjoy exalted status in our society.  Their opinions, therefore, as flawed as they may be, are regarded in some quarters with inviolable sagacity. Not baulked by this reality, however, I will express some views of my own, if only to put another perspective on the issues jaundiced by those to whom I have made reference.

Perhaps a convenient place to begin is the relevant articles of the Guyana Constitution.

Article 51 provides, “there shall be a Parliament of Guyana, which shall consist of the President and the National Assembly.” Immediately, it must be recognised that the National Assembly is not Parliament but a part thereof. The other component is the President. It is imperative that I emphasise that it is Parliament, constitutionally, and not the National Assembly, which is the law-making institution. Therefore unless a Bill receives the constitutionally required input from both the National Assembly and the President, it cannot become law.

Article 170 of the Constitution outlines the mode to be utilised by Parliament in discharging its law-making powers.  The relevant clauses are as follows:

Article 170:

“(1)… the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly and assented to by the President.

“(2) When a Bill is presented to the President for assent, he shall signify that he assents of that he withholds assent.

“(3) Where the President withholds his assent to a Bill, he shall return it to the Speaker within twenty-one days of the date when it was presented to him for assent with a message stating the reasons why he has withheld the assent.

“(4) A Bill shall not become law unless it has been duly passed and assented to in accordance with this constitution.”

It is crystalline from the above, that the President has an undoubted and untrammelled freedom to assent to, and to withhold his assent from, Bills presented to him.  In the case of the latter, he is constitutionally mandated to proffer reasons for so doing. The notion therefore, that the President is obliged, robotically, to render his assent to every Bill passed by the National Assembly, is manifestly misconceived. The constitution does not contemplate it, neither does legal logic support it. The quicker we rid our minds of it, the better. In this regard, the presidential power of withholding assent to Bills is not peculiar to the Guyana constitution. It owes its genesis to the Royal Prerogative and has been retained by many of the great democracies of the world, such as India and the United States.

Like the constitution of Guyana, the constitutions of India and the US express the power to withhold assent as an unfettered and untrammelled one. I submit that this is not by serendipity but by design.

The contention, therefore, that the President cannot withhold his assent to a Bill on the ground that, in his opinion or based upon the advice he receives, the Bill is unconstitutional, is a contention that is palpably wrong.  To place such a restriction upon the President’s power to withhold his assent from Bills is simply ultra vires the express language of the Constitution.  The framers did not contemplate it and the Constitution does not warrant it.

Pragmatically speaking, a President withholding his assent from Bills would, indeed, be a rare occurrence since, invariably, Bills emanate from the government’s side in the National Assembly and would have received an input from and the approval of cabinet of which both the President and his Attorney General are a part.

However, different considerations will obviously apply where the Bill originates from the opposition in an opposition-controlled National Assembly and more so, where the Bill was opposed by the government members.  It is in such situations, therefore, that the presidential power of withholding assent assumes paramount importance. If the objections are legal or constitutional then providence would dictate that the President seeks legal advice. If the President is persuaded by the legal advice that the Bill is unconstitutional, obviously, he is free to invoke the power to withhold assent to such a Bill and advance the advice which he received as the reasons for so doing as the Constitution mandates him to do.  Where is such course of action prohibited by the Constitution?  In fact, and indeed that is precisely why the Constitution gives him such wide latitude of powers.

The Indian constitutional expert Durga Das Basu’s, Commentary on the Constitution of India (8th edition 2008 Vol 4) considered this very issue.  The learned authors at 5295 posit that if a Bill, which is in direct contravention of the Constitution, is presented to the President for his assent, the President may refuse his assent to such Bill on that ground.  The rationale proffered by the learned authors is indeed seminal.  “The President has to take the oath that he will to the best of my ability preserve protect and defend the constitution. We have already seen that though in England there has been no occasion for the Government to advise a use of veto power since 1707, in India, we have had an instance where the Government required a use of the power in 1954, because the Bill, if made an Act, would have become ultra vires the Parliament.  Similarly, supposing after the passage of a Bill, the Government, upon a better consideration, comes to the conclusion that the Bill as passed contravenes any of the Directive Principles [the Constitution], it can hardly be urged that it would be unconstitutional for the Council of Ministers to advise the President to refuse his assent to the Bill, even though it has been passed by the Legislature”

I submit that the President under the Guyana Constitution takes a similar oath and would have similar obligations.

The argument advanced, therefore, that the President or the Attorney General has no power and authority to opine that a Bill is unconstitutional, is awfully infantile. Every day lawyers interpret the law and the constitution and advise their clients. Indeed, every legal system would break down and civilisation would come to a halt if every time someone needed legal advice, they were required to approach a court for its interpretation and advice. The arguments advanced are predicated upon the misconception that the President by expressing his opinion that the Bills are unconstitutional, has somehow displaced the functions of the court as being the sole arbiter of unconstitutionality. This is a patently irrational assumption. Its irrationality can be vividly illustrated by examining the converse situation, which is, the President assenting to the Bill. Can it then, in that circumstance be intelligently argued that the President has determined the constitutionality of the Bill and, therefore, has effectively ousted the court’s jurisdiction from ever entertaining a challenge to its constitutionality? Certainly not! The legal truth is that the court’s jurisdiction to question the constitutionality of Bills and actions by the state and its various organs can never be dismantled by the President or any other agency.

Role of Attorney General

The other issue which has excited public commentary is the role of the Attorney General Chambers in respect of Bills passed. After a Bill is passed by the National Assembly, the Clerk sends an authenticated copy of the same to the Chief Parliamentary Counsel, who is historically and coincidentally, housed in the Chambers of the Attorney General, for it to be examined as a true and correct copy of the Bill drafted or amended as the case may be. After all, invariably, it is the Chief Parliamentary Counsel who would have drafted the Bill or any amendments thereto in the first place. In this exercise, printing errors are regularly detected and corrected. When this exercise is completed, the Bill is then transmitted to the Attorney General, who issues an opinion to the President, advising whether the Bill satisfies the legal and constitutional requirements in order for him to assent or withhold his assent, as the case may be. Then the Bill is transmitted to the President along with those documents. As I have stated previously, this practice has been extant since colonial times. This fact has been confirmed by Mr. Frank Narain, former Clerk of the National Assembly, who has been attached to the Parliament office since the ’60s.

I have observed Mr Bryn Pollard, SC, a former Chief Parliamentary Counsel, criticising this practice and asserting that it should have ceased since 1966. Unfortunately, learned Senior Counsel functioned as Chief Parliamentary Counsel long after 1966 and one must wonder why he never advocated a change of the practice during his tenure. Indeed, by virtue of his office, he actively participated in the practice. I unearthed documents at the AG’s Chambers which show that the very Mr Pollard, as Chief Parliamentary Counsel issued an assent certificate himself, obviously in the absence of the sitting Attorney General. But then again, Senior Counsel may be suffering from a lapsus memoriae.

This practice appeared to have worked well over the years. None of my distinguished predecessors faulted it. I see no reason to do so now. Indeed, it would be improvident for any President, who has the power to withhold his assent to Bills, to exercise such power without legal or political advice, as the case may be. I am aware that constitutions specifically provide for the Bills to be transmitted directly from the legislature to the President. Unfortunately, our constitution does not so provide. Hence, that practice developed.

Apart from the fact that the government cannot effect amendments to the Bill at this stage, the only discernible difference, in Guyana’s case, is that the Bill comes to the legal ministry before it goes to the President. I am moved to ask, what is so wrong with that?

 

Yours faithfully, Mohabir
Anil Nandlall, MP
Attorney General and
Minister of Legal Affairs

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