Under the constitution, the PM is a Minister and therefore cannot sit in National Assembly while performing functions of President

Dear Editor,

Once again, Prime Minister Moses Nagamootoo’s presence in the National Assembly, while performing the functions of office of President, has become a contentious one. When it first occurred during the Budget Debates in late 2015, in an article titled “Prime Minister squatting in the National Assembly”, I publicly condemned it, as a violation of the Constitution and posited that his presence thereof was unlawful.

In light of the Leader of the Opposition’s pronouncements, last Friday in the National Assembly, the matter has become a live issue once again.

Perhaps, a convenient place to begin is Article 96 of the Constitu-tion. In the current circumstances, it is beyond disputation that the Prime Minister was appointed to perform the functions of the office of President under article 96 (1) of the Constitution.

Article 96 of the Constitution provides:

“Whenever the President is absent from Guyana or considers it desirable to do so by reason of illness or any other cause he or she may, by direction in writing authorise any member of Cabinet, being an elected member of the National Assembly, to perform such functions of office of the President as he or she may specify and the person so authorised shall perform those functions until his or her authority is revoked by the President or until the functions are resumed by the President.”

Again, it cannot be disputed that the Prime Minister is an elected member of the National Assembly and a member of Cabinet. Therefore, he qualifies to have been appointed by the President, to perform the functions of office of President.

The next relevant constitutional provision which falls to be considered is Article 178 (4) of the Consti-tution. The relevant portion reads:

“During any period when a Minister is performing the functions of the office of the President under article 96 or 179 or has assumed the office under the proviso to article 95(1), his or her seat in the National Assembly shall be regarded as vacant and may be temporarily filled in accordance with any provision made under Article 160 (3).”

The language of Article 178 (4) is unambiguous and unequivocal. Once a Minister, (who must be an elected member of the National Assembly), of the Cabinet is appointed to perform the functions of the office of President, then that Minister’s seat in the National Assembly “shall be regarded as vacant.” Therefore, while he is performing the office of President, Mr. Nagamootoo’s seat in the National Assembly “shall be regarded as vacant.”

It must also be excruciatingly clear that it matters not whether he is an elected member of the National Assembly or not. In fact, the framers of the Constitution specifically provided that it is only an elected member of the National Assembly who is qualified to perform the functions of the office of the President (See Article 96 (1) above).And in Article 178 (4), the framers of the Consti-tution, consciously rendered that seat as vacant, when that elected member is appointed to perform the functions of the office of President. The Prime Minister’s plea therefore, that he is an elected member of the National Assembly and therefore, cannot be “unelected”, is wholly devoid of merit and is simply puerile. It is the Constitution itself, under which he is elected as a member of the National Assembly, that renders his seat vacant.

The other contention of the Prime Minister that he is “Prime Minister” and not a “Minister” is equally specious and untutored. Article 103 (1) of the Constitution conclusively puts this issue to rest. It provides: “The Prime Minister and every other Vice President shall be a Minister of the Government of Guyana.” This provision establishes beyond any doubt that the Prime Minister is a Minister of Government.

There are additional and even more fundamental reasons, quite apart from the above, which disqualify an elected member who is performing the functions of office of President from sitting and participating in the business in the National Assembly.

The National Assembly is merely one component of Parliament. Article 51 provides: “There shall be a Parliament of Guyana which shall consist of the President and the National Assembly.” So what is loosely called a Parliamen-tary Sitting, is technically not. It is merely a sitting of the National Assembly.

It is the National Assembly that has the Constitutional responsibility of approving the annual estimates of expenditures not the Parliament. When estimates are approved by the National Assembly, an Appropriation Bill is then tabled capturing all the estimates of expenditures approved and that Bill is then required to be passed by the National Assembly. Upon passage of that Bill by the National Assembly, it then goes to the President for his assent. The framers of the Constitution prohibit the President from participating in the National Assembly and in the approval of Bills because the President is empowered to assent to those Bills. It would be a contradiction in terms if the President was to participate in the passage of Bills in the National Assembly and then having the functional responsibility of assenting to those very Bills. That is precisely why the President has a power to withhold his assent from Bills. The President is therefore, neither a part of, nor a “rubber stamp” of the National Assembly. The framers of the Consti-tution went to great lengths in creating a clear divide between the National Assembly and the President.

In the circumstances, while performing the office of President, the Prime Minister’s presence in the National Assembly is institutionally incongruous and constitutionally incestuous.

On the issue of convention and precedent, the record will establish that Mr. Nagamootoo is the only elected member of the National Assembly who ever sat in the National Assembly while performing the functions of the office of President.

Yours faithfully,

Anil Nandlall