A member can refer to any document in the House without having to produce it

Dear Editor,

John Q Tilson, a lecturer in Parliamentary Law at Yale Law School, a former Speaker of the Connecticut House of Representatives and a former Majority Leader of the US House of Representatives in his text, A manual of Parliamentary Procedure, (1948), describing the personage of one who presides over a Parliament, wrote thus: “The presiding officer of a parliamentary assembly is an institution growing out of human efforts directed toward self-government and is typical of a democratic republic.

The person exercising this function is usually chosen from the ranks of the membership and by the suffrage of the body over which he is to preside. He is clothed with certain important powers of the office, yet he is at all times the servant of the body and subject to its control.”

Across the Atlantic, treating with the British tradition,  Erskine May: Parliamentary Practice (20th ed), expressed similar sentiments about the office of the Speaker of the House of Commons. At page 234 it is stated: “The chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality …Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognized.”

In recent times, the conduct of the Speaker of the National Assembly has aroused great public interest and excited grave concerns. We, in the opposition, have been forced to publicly question the Chair’s impartiality on a number of occasions. The November 4th (2016) sitting of the National Assembly is as good as any to examine the Speaker’s conduct and rulings.

I will only address what transpired during my presentation. What occurred at that sitting during my presentation is now public knowledge, and thus, there is no need for me to recite all of the facts. Suffice it to say that, I was interrupted no less than four times by the Speaker, who ruled that I cannot mention certain matters because of the existence of legal proceedings; the Speaker then   prohibited me from speaking altogether because I could not instantly produce a newspaper to which I made reference during my speech; the Speaker next prohibited me from participating in the remainder of the proceedings of the House and eventually, the Speaker ordered me to leave the House.

I will examine two of these rulings. I do so with the singular hope that it will inure to strengthen our fledgling parliamentary democracy, since I harbour no doubt that the facts which precipitated those rulings are bound to recur in the very near future.

In a constitutional democracy like ours, there is no other forum that offers a greater guarantee to free speech than the National Assembly.

Unlike the United Kingdom, the right to free speech in our Parliament has a profound constitutional underpinning, which is inextricably bound to the very quintessence of representative democracy. The principle was elaborately addressed by Chief Justice Chang in a case filed by me, as Attorney-General, on the 27th of November, 2012, when the joint opposition gagged then Minister of Home Affairs Clement Rohee, from speaking in the National Assembly.

In the course of his 34 page judgment, Chief Justice Chang at page 27 posited: “… It is the view of this court that Mr. Rohee’s right to speak in the National Assembly derives from his office as member of the National Assembly and not from his office as an Executive Minister. Thus, his right as an elected member of the National Assembly must be concomitant with his constitutional duty to speak for and to represent his electors in the National Assembly who, in turn, have a concomitant right to be so represented.

It is here apposite to note that article 9 of the Constitution expressly provides: ‘sovereignty belongs to the people who exercise it through their elected representatives.’”

Free speech is regarded as so sacrosanct and integral to the business of Parliament that members enjoy immunity from suit for anything said or done in the House. The rationale is obvious. Members, in canvassing the welfare of those whom they represent must be able to do so robustly, candidly and free from fear of legal proceedings regarding what they say or do in the House. In Guyana, this immunity is codified by the supreme law of the land.

Article 172(2) of the Constitution provides that no civil or criminal proceedings may be instituted against any member of the Assembly for words spoken before, or written in a report to, the Assembly, or to a committee thereof. In short, the highest law of this land guarantees unqualified free speech in the Assembly. Of course, there are certain restrictions which are imposed by the Standing Orders. However, I must emphasize that these Standing Orders are to regulate speeches in the National Assembly, not to curtail them.

They must be interpreted liberally and in a manner that will encourage and engender free speech, not restrict or frustrate it. Any restrictive interpretation of these Standing Orders will run afoul of the very nature of Parliament as the highest discussion forum in the land. Such an interpretation will also fly in the face of the letter and spirit of Article 172(2) of the Constitution.

It is against this backdrop that I now wish to examine the Speaker’s rulings. During the course of my presentation I made reference to a newspaper article, which quoted Minister Ronald Bulkan as saying that the government settled the Haags Bosch dumpsite issue with the contractor BK International Inc by paying the contractor US$5.7 million on a mere letter threatening litigation. Minister Bulkan objected to the statement.

I reiterated that I read it in the Kaieteur News. At this juncture, I must emphasize that I did not read or quote from the newspaper but merely referred to an article carried in the newspaper. The difference is significant. The Speaker requested that I produce the newspaper, instantly.

I informed the Speaker that I did not have the newspaper with me but I could produce it if I was permitted an hour to do so. The Speaker refused to grant me that request, though ministers of the government are invariably granted several weeks to produce documents.

The Speaker ordered either that I produce the newspaper or withdraw the statement. I refused to withdraw the statement. The Speaker next ruled that either I withdraw my statement or take my seat. In compliance, I chose to take my seat. The rest is history.

I have examined the Standing Orders and I can find none which authorizes the Speaker to demand from any member the production of any article, book journal or written material to which that member refers in the course of his presentation in the House. Neither have I found any Standing Order which obliges a member to provide a copy of any document to which that member refers in the course of that presentation.

I also consulted the texts, Parliament, Powers Functions and Privileges (India), by Dr KS Chauhan; Griffith & Ryle, Parliament, Functions, Practice and Procedures (UK) 2003; and Erskine May: Parliamentary Practice (2004) 23rd edition, and I found no learning which suggests that a member who is not a minister has an obligation to produce documents to which he refers (but not read or quoted from) in speeches in the House.

I submit that this position would obtain, a fortiori, if the member indicates that he is referring to a newspaper enjoying daily circulation in this country.

However, an obligation to produce documents to the House seems to devolve upon a minister if that minister reads or quotes from those documents in his presentation. In Erskine May page 441, the following seminal passage appears: “A minister of the Crown may not read or quote from a despatch or other State paper not before the House, unless he is prepared to lay it upon the Table.

Similarly, it has been accepted that a document which has been cited by a Minister ought to be laid upon the Table of the House, if it can be done without injury to the public interest.”

On the other hand at page 443 of the same text, the learned authors make the following crucial observations in relation to members who are not ministers: “There is no rule to prevent Members not connected with the government from citing documents in their possession, both public and private, which are not before the House, even though the House will not be able to form a correct judgment from partial extracts.”

Therefore, while speaking in the National Assembly, I am free to refer to any document without having to produce same.

Yours faithfully,

Mohabir Anil Nandlall, MP

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