THE OPPOSITION AND LAW-MAKING IN PARLIAMENT

Oct 18, 2012 Features / Columnists, Peeping Tom

---

 

The greatest crisis facing this country is, as ironic as it may seem, one of parliamentary democracy.  This crisis has nothing to do with elections.
Guyana now has a parliamentary democracy because of free and fair elections. The root of this crisis is the failure of the opposition to understand its role as an elected collective in a representative parliament.
At the heart of this failure to understand the role of the opposition, particularly in parliament, is a lack of appreciation of Guyana’s constitutional traditions, the nature of the parliamentary system that exists, and its historical ties to the British Westminster system.
Parliament is about to reconvene after recess and the combined opposition is preparing for a new round of assault on the government. It has proposed to ensure significant amendments to various laws, and they have even been promised assistance in drafting their own laws.
In 1980, Guyana passed a new Constitution which emerged out of a process that tinkered with our constitutional traditions. The Burnham 1980 constitution, the final product of a rigged referendum, tried to overhaul with the Westminster constitution that was bequeathed to this country by our colonial masters.
Having the stigma of Westministerism, of course, made it easier to assail the old constitution and paint it as irrelevant to our history and circumstances, notwithstanding the fact that the constitution that we inherited on independence was built on solid constitutional foundations and historical traditions.
In the end, Burnham maintained the spirit of Westminster but merged the positions of Head of State and Head of Government to give effect to his dream of being a powerful President.
Despite there being an Executive Presidency, the 1980 constitution was still fundamentally based on Westminster ideals, the most significant of which was the separation of powers between the three arms of the State: the executive, the legislature and the judiciary.
Under the concept of separation of powers, the executive is responsible for the administration of the government, the legislature for the making of laws, and the judiciary for the adjudication of disputes. The separation of powers, which is still the most respected principle in constitutional rule, argues that in the exercise of its distinct functions, no arm of the State should perform the functions of the other arm. Thus it is not for the legislature to adjudicate on legal disputes. That is the responsibility of the courts.
The role of the executive is to exercise control over the administration of the government. The role of parliament is to pass laws. However, there is and has always been an important distinction in respect to introducing and passing laws.
While the legislature passes the law, the principal, not exclusive, obligation of introducing laws under a Westminster system has always been the responsibility of the government.
The administration of government is intrinsically tied up with the right to pursue its own legislative agenda. As such the executive has the right to introduce laws since this is an integral part of governing.  It would be tantamount to a reversal of roles if the government were to sit back and allow the opposition to decide what legislative bills to introduce. This would amount to the opposition exercising executive power because in introducing its own legislative agenda, it could virtually or constructively usurp executive functions.
The power, however, to pass laws that have been tabled is the sole responsibility of the parliament. As such, even if the government introduces a law, it is for parliament to decide whether it will be passed.
The opposition can refuse to pass laws tabled by the government. In this way they can frustrate executive action.
But they do not have the right to decide, without the consent of the government, on what Bills should be introduced in parliament. The decision to introduce Bills remains the principal prerogative of the government and the decision to pass remains the prerogative of the entire parliament.
It is true that the Constitution of Guyana allows for any member of the National Assembly to present a Bill. And the opposition is wrongly assuming that this gives it the right to introduce any legislation and to do so without the approval of the government.
If the opposition is allowed to bring Bills before the House, they can use this power to dictate executive policy and this would fly in the face of the separation of powers. If the opposition has the right to introduce any Bill, then it may also attempt to legislate its own Budget which is purely the responsibility of the Executive.
The provision that allows any member to bring a Bill before the House is synonymous with what is known as a private member’s Bill. The specific provision of our Constitution speaks about any member tabling legislation. It does not speak about the collective known as the opposition being allowed to table legislation.
It is hereby contended that this specific provision in our Constitution is a device to allow for private members’ Bills, something that is not a novelty under Westminster constitutions.
Andy Williams, in his magisterial work, UK Government and Politics, page 89, notes that members of parliament who do not hold ministerial office have the facility of introducing private members’ Bills. He observes that governments often support such Bills in order to legislate controversial issues of social morality such as a decision on abortion, the death penalty or homosexuality.
Votes in parliament on such Bills are usually votes of conscience and members are thus free to vote without resort to party positions.
The opposition must disabuse itself of this idea that they have freedom to introduce any Bills. They do not, except for private members’ Bills which as mentioned above is intended to move certain issues outside of political party conflict.
It can refuse to pass government Bills but it is not the opposition’s responsibility to legislate their own agenda.
Once the opposition begins to usurp the function of government and try to introduce their own legislation, the government will refuse to assent to it.
But the government will go further. It will use the introduction of any opposition Bill as the basis for a legal challenge and when that challenge is heard, the opposition will find itself embarrassed by its own failure to understand important principles of constitutionalism.

---

---