CJ’s ruling on National Assembly is erroneous – Sir Fenton Ramsahoye, S.C

By Kiana Wilburg

Distinguished Guyanese scholar, Sir Fenton Ramsahoye, is of the firm conviction that Chief Justice (CJ) (Ag), Ian Chang’s ruling which held that the National Assembly is not a supreme organ of democratic power, is entirely erroneous.

Sir Fenton Ramsahoye, S.C

Chang’s ruling was in relation to a constitutional challenge of the legality of the Broadcasting Authority brought by Broadcaster Jacob Rambarran, the owner of Rambarran Broadcasting Systems Limited (RBS 13) In his October 24, 2014 ruling, the Chief Justice who dismissed the case said that it was “legally misconceived.” Chang also discarded Rambarran’s argument that the system for granting licences was unlawful because it is solely controlled by the executive and disregards the National Assembly, through which the people exercise their sovereignty. Ramsahoye believes that the CJ’s ruling is wholly wrong. The fact that its appeal which was registered since last October last year has not been heard up to this point is a national travesty. He explained that prior to the 2011 elections when former President Bharrat Jagdeo was obliged to leave office, he distributed broadcasting licences to several people and caused an outcry because only persons close to him benefitted. At the time, Dr. Ramsahoye said that the licences were given under the old colonial telegraph legislation, which remained in force after Guyana achieved its independence status. He noted that when Jagdeo gave out licences immediately before leaving office, he assented to the Broadcasting Act 2011, but it did not come into force when he assented to it as President. The Broadcasting Act also favoured the government which was in office when it was passed, save for one person to be nominated by the opposition to the Broadcast Authority. The other six members of the Broadcasting Authority were appointed by the President. He said that such a lopsided allocation of representatives on the Broadcast Authority cannot possibly be relevant to a democracy. That very Act, Ramsahoye said, too, contained a provision that it would come into force upon the order of a Minister. There was no order at the time the 2011 General Election was held. The governing party, the PPP/C, lost the majority at that election and the new President and Ministers he appointed, did not have the confidence of a majority of a National Assembly, Dr. Ramsahoye asserted. Without that command, the former Attorney General (AG) opined that a lawful government could not be formed. He said that Ministers who did not command a majority of the Assembly had no ability to secure the passing of the budget which enables them to govern. “And that is the reason for the rule of constitutional law in democratic countries, that the government must have the confidence of a majority of the elected representatives and be subject to control of that majority in order to carry out a lawful government,” Sir Fenton added. He said that Rambarran and his company had a licence under the old law and challenged the right of the Minister to make an order bringing the Act into force when both the President and the Minister hadn’t the support of the majority of the elected representatives in the National Assembly and could not lawfully hold office without it. Without that confidence, he emphasized, they all ought to have resigned if they could not secure that majority. He said that usually this is done by forming a coalition. Dr. Ramsahoye opined however that the false assumption has been made that under the Burnham Constitution which the PPP/C embraced, no such coalition is possible. The former AG in an interview with Kaieteur News on the case, said that Rambarran and his company contended that Prime Minister Sam Hinds, had no lawful authority to bring the Broadcasting Act into force and it is not part of the laws of Guyana. He said that it purported to repeal the old colonial legislation but Rambarran contended that the old law was never repealed and remained in force because the Broadcasting ACT 2011 is not part of the law. Therefore the old law remains. In giving his legal opinion on the matter, Dr. Ramsahoye said that Rambarran further contended that many of the provisions of the Act contravened the freedom of expression of the Constitution by exerting control over what was broadcast. It was also argued that since the spectrum which is used for broadcasting, belongs to the people, it had to be managed and controlled by an autonomous body which is proportionally representative of all the people who owned it. It was argued too, that the Act provided for partisan, political control of the spectrum which is owned by all the people and for that reason it is unlawful. “The problem arose in India and the relevant judgment of the Supreme Court which ruled that an independent autonomous body was necessary was cited and given to the High Court when the case was heard,” the Attorney-at-Law added. The acting CJ dismissed the constitutional motion brought by Rambarran and company and an appeal was lodged with Court of Appeal on November 16, last. To date, the Court of Appeal has taken no action to deal with the case which Sir Fenton deemed to be one of major constitutional importance and should have been heard immediately, “even if the court had to sit at night.” He emphasized that because the issue as to whether a government which does not have the confidence of the majority of the National Assembly, is not a lawful Government and must resign, is a major issue affecting the entire nation and must be heard expeditiously. He cited that in his judgment, the acting CJ held that the National Assembly is not a supreme organ of democratic power and ignored its importance in the formation of a lawful democratic government. Dr. Ramsahoye asserted firmly, that the National Assembly is at the core of representative and responsible government and is at the heart of democracy. Rambarran and his company are still fighting to have the appeal heard. The former AG stressed that in a matter where it is being said that the government should resign because it is unlawful, is serious and must be heard. He believes that issue should take precedence because it is not an ordinary issue between a citizen and the state. “All the Appeal Court has to do is view the papers which were before Chang and they are still stalling. There is no need for witnesses. Chang’s judgment is just wholly wrong.”