THE GOVERNMENT SHOULD APPEAL THIS DECISION

Jan 16, 2013 Features / Columnists, Peeping Tom

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The government should file an appeal against the decision of the Chief Justice in the case challenging the decision of parliament to prevent the Home Affairs Minister from speaking until a determination by the Committee of Privileges of the motion laid against him by the joint opposition.
That decision to refer the motion to the Committee of Privileges was highly questionable. The Minister violated no standing orders, did not disrupt the proceedings of the National Assembly as did the opposition (without sanction), nor was he ever charged with a breach of any of the privileges of parliament.
The government was left with little option but to challenge the constitutionality and legality of that decision as well as the accompanying ruling that the Minister of Home Affairs should not be allowed to speak until the matter is heard by the Committee of Privileges.
There has been a ruling in that challenge. The Chief Justice has ruled that the member could not be gagged. It is pure balderdash for anyone to be arguing now that the minister was never gagged. It is also twaddle for anyone to claim that the voting rights of the minister amounted to a right to speak.
The effect of the ruling preventing the Minister from speaking until the determination by the Committee of Privileges amounts to a temporary gag order.
However, the minister is an elected member of the National Assembly and therefore cannot be gagged unless he has committed a breach of privilege. His election to the National Assembly is by virtue of provisions of the Constitution and since the court is, in the words of the Speaker, the guardian of the Constitution, it is the duty of the court to review any action which contravenes the rights that are implicitly created by virtue of the member’s election to the National Assembly.
The National Assembly cannot claim that it enjoys total immunity; it does not. The local courts have held that the immunity of the National Assembly is limited and is subject to the constitution and to the law.
Ironically, it is this very aspect that needs to be appealed, because while the government has won major constitutional cases in recent times involving acts of parliament, the interpretation by the courts remains constrictive, narrow and cautious. This is true, both in terms of judicial review of parliamentary actions as well as with respect to fundamental human rights.
For example, with respect to freedom of expression, the local courts have not ventured into ordering the authorities to grant broadcast licences. The courts have failed to order the issuance of a specific licence to a claimant, even as it ruled that the failure to consider an application for a licence amounted to a breach of freedom of expression.
Regional courts and the Privy Council have not been guarded. There have been instances were these courts ordered that licences be granted to claimants.
When it comes to comes to violations of the Constitution, the courts in the OECS and in Latin America have not been timid. In one case in Dominica, the court refused to be constrained by narrow interpretations of judicial reviews of the actions of the National Assembly.
In that case, the court adopted a philosophy that it would not just question parliamentary violations of the constitution, but that once a body acquired powers by virtue of the Constitution, it was duty-bound to apply these powers in consonance with the constitution, fairly and justly. In Latin America, the courts have gone as far as overturning constitutionally entrenched immunities of former Heads of States.
For these and other reasons, the government should appeal the limited interpretation that the local courts are adopting in constitutional cases. This should be one of the main planks upon which Justice Chang’s decision should be challenged.
The second main plank should be the ruling that while the gag on Minister Rohee was unlawful, ultra vires and unconstitutional, the right to speak was not an enforceable right. This aspect of the ruling needs to be challenged, because a constitutional right is either “justiciable” or “non-justiciable”. If it is the former, then the court can decide whether the right was breached or not breached, but if it is the latter, then the court does not have to consider whether there was any breach.
With the highest respect to the learned Chief Justice, it is hard to contemplate how the court can rule that there was a breach of the constitutional rights of a member of the National Assembly, and then claim that this right is unenforceable. It could only be unenforceable if it is the position of the court that it is for parliament to correct the breach or if the right is merely declaratory. But if it was declaratory, the court was not obligated to consider whether there was a breach, because the right would have been “non-justiciable.”
The refusal of the court to order parliament to reverse itself is in contrast to the position adopted in the case of the Ethnic Relations Commission when the court ordered the restoration of the funding for that body. The government should therefore challenge the recent ruling on the enforceability of a member’s right to speak, as well as on the restrictive interpretation being adopted by the Courts.
Having done this, it can move on to launching its political challenge to force the resignation of the Speaker.

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