AN INTERESTING DEVELOPMENT!

Mar 10, 2012 Features / Columnists, Peeping Tom

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This column will not discuss the merits or demerits of the motion filed by the Attorney General asking the court to advise on constitutionality of the composition of certain parliamentary committees.
The merits and demerits of that motion will be debated within the courts and is best left to that institution. Some politicians have however seemingly already made up their minds about the chances of success of the government’s move.
Whatever the outcome of the motion, the decision of the government to move to the courts to prevent being marginalised by the joint parliamentary opposition, can but only strengthen the workings of Guyana’s parliamentary system of democracy.
The courts have long held judicial powers of review, but this has mainly been exercised in relation to the constitutionality of legislation. There is also a body of case law that addresses the issue of legislation passed improperly.
What the present motion tabled by the Attorney General reportedly seeks to do, is to ask the courts to determine issues related to the establishment of committees of parliament with reference to their constitutionality.
This is interesting recourse that is being pursued by the government and this will make the system of parliamentary democracy and our constitutional jurisprudence more respected.
Therefore, in as much as some persons will want to dismiss the action taken by the government, it should be seen in a positive light because there are important issues both constitutional and otherwise that are likely to be addressed when the courts pronounce on the motion.
If there is a remedy through the courts it is always advisable that, were political disagreements to occur and the contesting parties cannot reach an agreement that the courts rather than mob rule, be resorted to in settling disputes within the jurisdiction of the judiciary.
One opposition party in parliament has sought to indicate that the courts cannot inquire into the legislature. This is far from the truth. There are numerous examples of the courts exercising judicial review of both executive and legislative action, the former including action taken in relation to administrative law and the latter, mainly in terms of compliance with the constitution.
Another member of parliament has indicated that the government is on a fishing expedition. Well it is still to be seen what will be the outcome of this exercise and the learned gentleman who made this comment had better pay keen interest to what the court says.
Regardless of the outcome of the motion, the fact that there will be a legal pronouncement will make our legislative and judicial system stronger since issues such as the separation of powers are likely to form part of the arguments that will be laid before the courts.
The present motion may be a novel undertaking in Guyana but this novelty must not be assumed to be without merit or cause. Recently, a similar argument was raised when the Commissioner of Police filed an action seeking judicial review of the actions of the Director of Public Prosecutions. Not many can recall a similar action being taken before charges were laid but there were at least two cases prior in which the courts was asked to pronounce on the decision of the DPP to file charges against ranks from an anti- narcotics unit.
The decision of the court is therefore going to be keenly anticipated for a number of reasons. For one, the internal affairs of parliament are usually guided by the standing orders. What happens if these standing orders are not complied with? Are we to assume that if the standing orders of parliament are violated there is no legal recourse? This is one of the issues likely to be raised in the legal tussles that will take place.
While, as reported in the media the Attorney General is attempting to inquire into the constitutionality of certain actions within the parliament, there is every likelihood of the issue of the courts being a forum for redress for violations of standing orders being deliberated upon.
The ruling on the case, therefore, is likely to be keenly observed not just by the defendants but also by all those with an interest in constitutional jurisprudence. What we have in the making is the possibility of a landmark decision.
As such, those who are writing letters to the media seeking to argue that the issue of proportionality should be applied across the board had better concentrate their efforts into the deliberations of this motion before the courts because it will have implications for the future conduct of parliament and for constitutional law.
Guyana can be proud of its contributions to constitutional law. It can be proud of its judges both past and present.
And for those who in recent months have been focusing their attention on the historic parliament, they should be reminded that the judiciary is also an important institution and its significance to democracy, the effective workings of our parliament and to the safeguarding of the rights of all citizens should never be underestimated.

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