Until fowl cock grows teeth

Jun 05, 2021 Features / Columnists, Peeping Tom

Kaieteur News – Anil Nandlall is wasting the Court’s time with his specious appeal against the decision of the Chief Justice, which held that two PPP/C parliamentary secretaries were unlawfully appointed to the National Assembly. The Attorney General ought to know better than to question this decision.
But the PPP/C is back to its arrogant ways. The mask, which sought to show that it was a changed party from its pre-2015 days have fallen off. The PPP/C has continued where it left off, not wanting to accommodate any reasonable challenge to its authority.
While the Chief Justice did not specifically order that the two parliamentary secretaries demit their seats, the Speaker of the National Assembly is compelled to deem those appointments unlawful until such time as the decision is overturned by a higher court, which is not likely ever.
Nandlall ought to know that it is not the general practice of the Court to issue coercive orders against the legislature. The Court exercises judicial review of legislation and has the authority to determine whether the actions of the National Assembly are ultra vires of the Constitution, as it has done before.
However, the Court has generally been disinclined to issue coercive orders to the National Assembly. There are two principal reasons for this.
Firstly, the Court respects the principle that the legislature regulates its own conduct. However, this regulation does not constitute parliamentary supremacy as some persons in the APNU+AFC has misguidedly assumed between 2011 and 2015.
Parliamentary supremacy exists in Her Majesty’s country. Not in Guyana.
In Guyana, it is the Constitution, which is supreme. The legislature enjoys sovereignty over its own procedures but cannot as former Justice Ian Chang ruled; use these procedures as the basis for enlarging the scope of its constitutionally decreed powers.
This issue of parliamentary supremacy/sovereignty was decided a long time ago in the Collymore v Attorney General (1967). In that instance, the Court ruled that the issue of parliamentary sovereignty did not arise, and it clearly outlined that any sovereignty that parliament possesses is limited by the Constitution. “No one, not even Parliament, can disobey the Constitution with impunity.”
Parliament itself has long recognised that it is the Court that is responsible for settling disputes on the constitutionality of acts of both the legislature and executive. Therefore, there should be no hesitancy in complying with a ruling by the Court. It is for the Speaker, and not the National Assembly, to ensure that the ruling of the Court is complied with.
Secondly, in keeping with the convention of comity that should exist between the judiciary and the other arms of the State, the Courts tend to restrain itself from issuing such orders, relying instead on the belief that the legislature would, of its own volition, respect the court’s authority to review the constitutionality of both legislative and administrative actions.
Guyana will once again be going down a slippery slope of anarchy, unless the relationship between the judiciary and parliament is characterised by comity. Even if a member of the legislature feels that the ruling is flawed, he or she has the right to challenge such a ruling in the appropriate forum, a court of appeal. But no member should be seen as disregarding a ruling, which deems the appointment of persons as unlawful, regardless of whether or not coercive orders were issued.
The Speaker should bring an end to the speculation and Nandlall’s public statements about the two parliamentary secretaries. He should do the right thing and ensure that there is comity between the legislature and the Court.
The two parliamentary secretaries should not be allowed to sit in the National Assembly. This is a straight forward legal issue for which there is precedent.
Nandlall can huff and puff all he wants about appealing the Chief Justice’s decision. But he ought to know that he has as good a chance of overturning that decision as fowl cock has of growing teeth.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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