The Local Government (Amendment) Bill is not unconstitutional

Dear Editor,

Following a report in KN on the unassented local government bill, there was an exchange of correspondence in the letter columns of SN and KN between the Attorney General and Mr Vincent Alexander.

Editor, how could a straightforward matter of the intended legislative transfer of ministerial-executive local government functions to a constitutionally mandated Local Government Commission (LGC) by the Local Government (Amendment) Act (LG(A)B) (if, and when the Bill is assented to) become a matter of such constitutional difficulty? It is important to understand that the LGC is now established and in existence despite the fact that the operation of the LGC is contingent upon, inter alia, the enactment of the LG(A)B.

I am reassured that the AG has disabused himself of the notion of the LGC as being a “non-executive body” on a similar constitutional footing to the service commissions (which are autonomous) and so “cannot be charged with executive responsibilities.”

It was this manifest flaw that Vincent Alexander appears to have been concerned about in his questioning of whether “the Attorney General has misled the President by virtue of his advice on this matter and the President has overruled the wisdom of the National Assembly on spurious grounds…”   The AG now has taken the position that that is not the real issue – the real issue is Parliament’s undesirability.

In his letter of May 21 he writes: “It is the National Assembly (not Parliament but a component thereof) by a majority vote that is desirous of transferring executive power from the fountainhead of all executive power the Executive President and residing same in another agency. The constitutional truth, however, is that same can only be done if the President (the other constituent part of Parliament) is ready and willing to cede his executive powers to that agency by affixing to the Bill his imprimatur, that is his assent thereof. By exercising his constitutional powers of withholding assent, the President has, in essence signalled his refusal to cede his executive powers to the agency in question. Art. 99 (2) therefore is wholly inapplicable in this polemical matrix.”   Is Parliament’s, or the President’s undesirability the reason stated in the President’s message to the Speaker in compliance with article 170(3)? The AG could, with similar purpose, as in the above extract, have been much less reticent by boldly asserting that if the National Assembly could have refused without constitutional opprobrium to pass the Bill; the President equally could refuse to assent also, without constitutional opprobrium.

But the AG is being disingenuous by shifting the focus from the legalistic issue of the misconception about the LGC being a “non-executive body” to one of constitutional praxis – the unquestionable power of the President to withhold assent to Bills passed by the National Assembly. But suppose, just suppose, that the President, had he been advised otherwise, would have been minded to assent to the Bill. Surely on that hypothesis, the non-assent based on a misconception must be a matter of public condemnation that ought not to be trivialized by transforming it to one of constitutional praxis. Indeed, the question might well be asked, if the President is undesirous of ceding his executive powers to the LGC, why did he assent to that Bill? Be that as it may, for myself, I entertain not the slightest doubt that the LG(A)B is constitutional (both substantively and procedurally). Similarly, I entertain no doubt that the President can withhold assent at his pleasure even if such withholding frustrates and negates the whole constitutional purpose of chapter vii of the constitution.

The constitutionality of the Bill is this: the whole constitutional purpose of Chapter vii under the heading ‘Local Democracy’ is the operation of an “autonomous” (Article 75) local government system that translates into insulation from political influence and control of Cabinet. Plainly, the LGC falls within the ambit of ‘Local Democracy’ (see Articles 71 to 78A; Articles 2 and 232(9); and Section 2 of the IGCA Chapter 2:01 as to the definition of “local democratic organs” and “local government authority”). So, the Attorney General must explain how such autonomous local governance can be realized other than by the transfer of functions from the cabinet (and in particular the subject Minister) to the LGC, thereby securing for the LGC the insulation from the political influence and control of the government of-the-day.

The constitution requires Parliament to effect such transfer. The National Assembly has discharged its duty in that constitutional matrix by having passed the LG(A)B; its enactment into law awaits the discharge by the President of his constitutional duty.

And so, there is another overwhelming argument why the AG’s objection to the ceding of the President’s executive power to the LGC cannot be supported in strict constitutional law. Articles 75 and 78 (A) must both be complied with – they are both enforceable; they are not aspirational in intent. So, if any Bill were to be assented to without any provisions for the consequential transfers to the LGC then such Bill (so drafted and passed) would be inconsistent with the whole tenor of Chapter vii and particularly Articles 75 and 78A and be, accordingly, void for inconsistency (Article 8). That is the dilemma and irony of the AG’s approach and his contention about the LG(A)B being ultra vires the constitution. The dysfunctional point is devoid of any merit at all. Dysfunctionality is not synonymous with unconstitutionality. Dysfunctionality is curable by the simple remedy of amending legislation; unconstitutionality is incurable.

With respect to the procedural constitutionality of the LG(A)B, the powers/functions in question are exercisable by the subject Minister pursuant to Art. 107. And if exercisable by the subject Minister, why not the LGC? Are the functions/powers to be transferred outside the scope of ordinary legislation like the LG(A)B? No. Article 107 is not an entrenched provision (see article 164(2)(b)). But I must mention the “decided case” referred to by the AG and on which he has seemingly placed some relevance, albeit misplaced. Hinds And Others (1976), is the locus classicus on separation of powers doctrine in Caribbean constitutional jurisprudence. But the danger is a misunderstanding of its principles, and its consequential misapplication. The AG’s reliance on it ignores the time-honoured aphorism – a case is only an authority for what it actually decides.

The impugned transfer of judicial powers to the executive Governor General aspect of the Hinds and Others case is of no relevance to our matter. The LGC is not a judicial body or “agency.” Ours is a matter of the transfer of powers/functions from the highest executive ie, the President (or more particularly his delegate – the subject Minister) to a lower executive, ie, the LGC. Indeed, ironically it is precisely considerations of political preeminence and proclivities which are attributed to the President/ministers and which, by necessary implication of law, disqualify the President and/or Minister from exercising governance functions over an “autonomous” LGC. So the AG’s argument about ultra vires fails. It has no support either in principle or in authority.

No encroachment by the executive beyond its boundaries and into the territory of the National Assembly or the judiciary, is threatened by this transfer. What is threatened is an encroachment by the LGC into ministerial territory. But that is a very different matter from encroachment by one branch into another; it is constitutionally permissible.

I am not aware of any expressed or implied restriction in the provisions of Articles 51,65, 75,78A, 89, 99 or 107 on the transfer of the ministerial local government powers/functions with which the LG(A)B is concerned. On the contrary, Article 99(2) provides a plentitude of entrenched enabling powers to Parliament to transfer to “authorities” like the LGC functions exercisable by the President, so, a fortiori a subject minister! Surely, the LG(A)B does not require a referendum and 2/3 majority vote in the National Assembly for it to be constitutional.

One final point: In Guyana’s parliamentary architecture membership of the National Assembly is based on proportional representation and an extraction by the leader of the list of candidates; rather than true constituency election (as in the British House of Commons and the Trinidad and Tobago House of Representatives) a 2/3 override of the President’s non-assent is all but a feeble political plausibility. The point here is this: if withholding is non justiciable; a 2/3 override is all but an abstraction, and non-enactment of LG(A)B is (all other things being equal) a fait accompli (Art 170[6]).

So, in the end my verdict is this: Vincent Alexander is right as a matter of strict constitutional law, that the LG(A)B is not unconstitutional. A pyrrhic result one might think, when the “constitutional truth” (to borrow the AG’s phraseology) is that unless the President is desirous of assenting, no court has any constitutional authority to compel him to assent. In spite of all the legalistic and constitutional niceties, there is no legal remedy.

Yours faithfully,

Maxwell E Edwards

(Former Senior Magistrate)