The constitution says the government cannot remain in office if it does not enjoy the confidence of the House of Assembly

 

Dear Editor,

Much has been written and said about the President’s decision to prorogue the Parliament of Guyana in order to avoid defeat on a no-confidence vote, which would have led to the resignation of the cabinet including the President.

(Article 106 :6) and the holding of an election within three months or such longer period supported by resolution by not less than two thirds of the votes of elected members (Articles 106 :07), during which time the government remains in office and shall resign after the President takes office following the election (Article 106 :07).

All of this is quite clear. However, many in the press have expressed the opinion that the President acted “constitutionally” by invoking his so-called power under the constitution article 70:1 which states that “the President may at any time by proclamation prorogue Parliament.”

This article also is quite clear. Some have even claimed that the President’s action while being constitutional, is “undemocratic”, “dictatorial” and so on.

In order to understand the legality or the constitutionality of the President’s proclamation, one has to understand the constitution in its entirety.

It would be an error to just take Article 70 literally and isolatedly and ignore the rest of the constitution. The Constitution of Guyana clearly and unambiguously demands the resignation of the cabinet including the President once they have lost the confidence of the majority of the elected members of the National Assembly.

No one, not even the President denies that the cabinet has lost the confidence of the house.

The constitution says that when this happens, the cabinet including the President, must step down and call new elections. The President therefore, in these circumstances cannot abuse Article 70 to stay in office and to refuse to resign and to call elections.

In such a situation the President can only remain in office heading a caretaker government after resignation provided also that elections are called. If elections are not called as required by the constitution then the government is unlawful and illegitimate and unconstitutional and has no power to prorogue parliament or to do anything, for that matter, that is not in the nature of caretaking until the next president is sworn in. Therefore, the so-called proclamation is null and void because the President has no such power to issue it where he has lost the confidence of the majority in the National Assembly.

Obviously he cannot abuse the constitution to avoid or to circumventor to subvert the operations of the constitution under Article 106. He cannot take away the rights of the majority in the National Assembly to exercise their power vested in them by the constitution.

It is true that the constitution requires a vote of no confidence, but where the president himself seeks to thwart this, to prevent it unlawfully from taking place then one has to rely on the clear expression of no confidence unambiguously articulated by the National Assembly.

There is really no dispute about the no confidence and the vote of no confidence is merely the ‘paperwork’ to confirm the reality. A simple analogy to this abuse is a situation where the personnel manager has fired a staff member but the paperwork confirming this has not been issued because the person doing the firing is prevented from sending the letter of dismissal confirming the dismissal that has already taken place anyhow.

The Constitution of Guyana does vest a lot of power in the President and he has every right to exercise it, but only and so long as he enjoys the confidence of the House. Whenever he loses that confidence he must resign and call new elections and heads a caretaker government awaiting the results of the elections.

To presume to stay in office while blocking the no-confidence vote is not permitted by the constitution and there is no collision between Articles 70 and 106. The president does normally have power to prorogue but not when he has lost the confidence of the House.

The operative article of the constitution here is Article 106. As for the idea of clinging to office for up to six months, that is arrant nonsense. Any clinging to office for a single day after losing confidence and refusing to resign and call an election, is tantamount to seizing power unlawfully. The Burnham 1980 constitution is in need of serious reform, but that is the constitution we have at the present time and it has been generally accepted by all political parties after feeble efforts at reform.

And the constitution says that you cannot remain in office if you do not enjoy the confidence of the House.

It does not prevent an executive presidency whose party has a minority in the House but it does require that although your party has a minority in the house, that you conduct yourself in such a manner at all material times, overall, that you do command a majority in the House including your own members.

The day you lose this and it is expressed clearly then you have to resign and go to the polls.

Not doing this makes the government entirely illegal. However, it would not be such an egregious violation of the constitution to have a 72-hour recess in order to attempt to secure the withdrawal of the no-confidence motion by granting the opposition parties their legitimate demands. That may be a possibility. As for running an unlawful regime for 6 months, get that idea out of your head.

It is not going to happen.

 

Yours faithfully,
Ramon Gaskin

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