WHAT CONSTITUTIONAL CRISIS?

Oct 22, 2012 Features / Columnists, Peeping Tom

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The failure of the President to give assent to Bills introduced by the members of the opposition in parliament will not create a constitutional crisis. The power to not assent or to reserve assent is itself a constitutional right vested in the President of Guyana.
This issue therefore of a constitutional crisis arising should the President fail to assent to private members legislation is based on gross misunderstanding of the implications of the refusal of the President to assent to such Bills.
This is not the first time that the boogey of a constitutional crisis has been raised in the present parliament. The specter of such a crisis was also invoked during the first session when it seemed as if there would be no agreement on the Budget. That fear evaporated and has since been nullified by a preliminary ruling by the Courts to the effect that the opposition may reject or accept a Budget, but it cannot alter same.
As such, the possibility of any constitutional crisis arising because of the failure of the President to assent to private members’ Bills is non-existent.
In fact, if there is likely to be any crisis at all, it is to be over the fact that the opposition seems to have the idea that they have a right to enact legislation which does not enjoy the consent of the Executive.
It is hereby contended that neither through a private member’s Bill of otherwise does the opposition have any such right .This is why private members’ Bills are limited to politically non-contentious issues. If the opposition feels otherwise, then they should produce the sources that they feel support the view that they are invested with the prerogative to pass laws that does not enjoy the support of the Executive.
A Bill only becomes law when it receives Presidential assent and it is not the role of the opposition to be creating laws. In the parliament, they are supposed to exercise scrutiny over government policies. They have the right to debate and discuss issues and more importantly if they have the requisite majority, they can frustrate the law-making powers of the government by rejecting Bills that are tabled by the government.
What is not legitimate is for the opposition to use their majority to encroach on the work of the Executive. If the opposition were allowed to get away with this form of legislative rascality then by implication they may assume that they have the right to table their own Budget and thus administer the affairs of the country.
Any attempt by the opposition to try to encroach on the jurisdiction of the Executive constitutes a subversion of parliamentary democracy and must be constrained. One of the reasons why the prerogative of presidential assent exists is precisely to circumvent such subversion.
Parliament cannot encroach on the turf of the Executive arm of the State. But if per chance this happens, then the refusal to grant presidential assents represents a means towards repelling such trespass.
Presidential assent is also a check against parliamentary dictatorship, arbitrariness or the capricious actions by the legislature. The President can withhold assent if the opposition decides to co-opt the prerogative of government. If the President also feels that piece of legislation is unconstitutional, then he would be within his rights to withhold assent and send it back to the Assembly. Some jurisdictions permit the President to refer the matter to the Supreme Court but there is no such facility under Guyana’s constitution.
On the issue of constitutionality of legislation, it is not for the Speaker to pronounce on this. There are precedents in previous parliaments which will support a finding that the Speaker cannot prevent debate on Bills based on the opinion that it is unconstitutional. It is for the Courts to decide on the constitutionality of legislation.
However, in entertaining private members’ Bills, the Speaker should be guided by convention, which suggests that such Bills should not encroach on areas that are the domain of the Executive.
If this is honoured in the breach, the President can withhold assent. The right to assent to Bills is not a formality under Guyana’s constitution. For a more detailed treatment of this please see the editorial of Kaieteur News of Sun October 21 which supports the contention that refusal of assent to private members’ Bills is provided for in the constitution.
The President can even refuse to assent to Bills passed by his own government. In some jurisdictions, when this happens, then by convention the Council of Ministers must resign because of the dictum that the Crown has no will save of that of its ministers.
This dictum, fortunately or unfortunately, does not apply in Guyana because full Executive authority is vested in the President and not in Cabinet. The President can lawfully therefore act without the support of his Cabinet.
This may have been one of the reasons why it was suggested that instead of Executive supremacy being vested with the President, it should be vested in the Cabinet.
But the fact that the President can act without the support of his Cabinet is also never likely to lead to any constitutional crisis.

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