AG responds to Vincent Alexander

May 20, 2014 Letters

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Dear Editor,
I refer to a letter written by Mr. Vincent Alexander published in the letter columns of the daily newspapers.  In that letter, Mr. Alexander referred to statements which I made in my 2014 Budget presentation in the National Assembly, regarding the reasons advanced by His Excellency, President Donald Ramotar, for his withholding assent from the Local Government Amendment Bill.  In my presentation, I adumbrated a number of reasons, including, but not limited to the following:
1. the deletion from the Bill, of several clauses by the Opposition with no corresponding amendments inserted to fill the deficiencies created by those deletions;in the consequence, there are several structural and institutional deficiencies in the architecture ofthe local government structure which the Bill purports to create;
2. the conferment by the Bill upon the Local Government Commission, created by Article 78 (A)  of the Constitution,  with more functional responsibilities than the Constitution itself confers upon this Commission, thereby making those provisions of the Bill ultra-vires the Constitution.
Mr. Alexander, however,omits to make reference to the aforementioned reasons and indeed, cites another ground advanced by me which I will address hereunder, unfortunately, conveying the impression that it is the singular reason proffered by me for the President’s withholding of his assent.
Perhaps, it is convenient that I quote from Mr. Alexander’s letter:
“I am referring to the pronouncement of the Attorney General on May 15 in a local newspaper that there is dissatisfaction with, and consequentially non-assent to, the Local Government (Amendment) Bill, by President Ramotar because it gives “Executive power to anon-executive body”; and “the Commission by its very nature is not an executive agency but it is a Constitutional autonomous body like the other Constitutional Commissions and cannot be charged with executive responsibilities”.
Mr. Alexander next seeks to justify the conferment upon the Local Government Commission of functionalresponsibilities, which are executive in nature.  To buttress his contention he invokes article 99 (1) of the Constitution.  In his words “What was the intention of the Constitution when in Article 99(1) it states that “The Executive authority of Guyana shall be vested in the President….” but immediately goes on to state in Article 99(2) that “Nothing in the article shall prevent Parliament from conferring functions on other persons or authorities other than the President.”
Herein liesthe gravamen of Mr. Alexander’s faux pas.  He commits the most elementary blunder by confusing “Parliament” with “National Assembly”, thereby, completely ignoring article 55 of the Constitution which provides that “there shall be a Parliament of Guyana, which shall consist of the President and the National Assembly.”
It is the National Assembly, (not Parliament but a constituent part thereof) by a majority vote, that is desirous of transferring executive power from the fountain-head of all executive power, the Executive President and residing same in another agency.  The constitutional truth, however, is that same can only be done if the President, (the other constituent part of Parliament)  is ready and willing to cede his executive powers to that agency, by affixing to the Bill his imprimatur, that is, his assent thereof.
By exercising his constitutional powers of withholding assent, the President has, in essence, signalled his refusal to cede his executive powers to the agency in question.  Article 99(2) therefore, is wholly inapplicable in this polemical matrix.
There is yet another dimension.  Even if the President was prepared to cede executive power, the next issue to consider is, what impact, if any, such cessation will have on the doctrine of separation of powers, a concept to whichMr. Alexander makes reference in his missive and with which, I presume, he is familiar.
Perhaps the point can be best exemplified by reference toa decided case.  In 1974 Jamaica’s Parliament enacted a Gun Court Act. This statute establisheda court to hear and determine, exclusively,firearms related offences.  Upon conviction, there was a mandatory sentence of hard labour at the Governor- General ‘s pleasure and was not to be discharged, except at the direction of the Governor-General, acting in accordance with the advice of a Review Board, consisting of 5 (five) persons appointed by the Governor-General.
A legal challenge was launched against the constitutionality of the legislation, on the grounds, inter-aliathat the provisions of the Act relating to mandatory sentence to hard labour during the Governor-General’s pleasure, acting upon the advice of the Review Board, were unconstitutional.
The case went all the way to Her Majesty’s Privy Council.  The Privy Council ruled, inter-alia,that while no express provision of the Constitution was violated, the conferment of the judicial power to impose a sentence after conviction upon an executive agency, the Governor-General and the Review Board, was an abrogation of the doctrine of separation of powers, the foundation upon which Jamaica’s constitutional edifice was constructed.  The Act was, accordingly, declared, unconstitutional.
Extrapolating and applying the principles enunciated in that case to the situation at hand, it is demonstrably clear that Presidential assent will not cure the mischief of a violation of the doctrine of separation of powers.
The anxieties expressed by Mr. Alexander,therefore, that he may naively conclude that I misled the President and that the President has overruled the National Assembly, are indeed well founded.  While I never professed to enjoy monopolistic knowledge of the law and constitution, I am assured in my belief that my legal arguments and rationale are sound.
I have often challenged those who disagree to test them in the courts. I reiterate that challenge.
Lastly, I wish to assure Mr. Alexander that whenever the President withholds his assent from a Bill, His Excellency is not “overruling” the National Assembly but is merely exercising a constitutional power which he enjoys and which must necessarily be invoked in appropriate circumstances.
Yours faithfully
Mohabir Anil Nandlall
Attorney General

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