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Former Member

President’s non-assent of Opposition’s Bills in conformity with constitution- Bills collide with constitution, extant laws

May 13, 2013, by Editor, Georgetown, GINA, Source

Prime Minister Samuel Hinds said that the substance of the Fiscal Management and Accountability (Amendment) (FMAA) Bill of 2012, and the Former President’s (Benefits and other Facilities) Bill of 2012 to which President Donald Ramotar has withheld his assent, are unacceptable.

He was at the time speaking on a special programme on the National Communications Network (NCN) along with Attorney General and Minister of Legal Affairs, Anil Nandlall. The APNU at a recent press conference had announced that they will be approaching the court to challenge this decision by the President.

Unconstitutional Bills

The Prime Minister said that it was a very reasonable for the president to reject the two Bills and not assent to them on the grounds of the substance of the Bills themselves.

With regards to the amendments to the FMAA Act, he said that this matter needs a more comprehensive approach such as amending the constitution and putting in place the requisite procedures as was done some years ago to change the way funding was being allocated for the management of the Auditor General’s office.

In terms of the Bill to repeal the benefits of the former president, the Prime Minister said that apart from being unconstitutional, it is unreasonable, unacceptable and vindictive.

This Bill is in contravention of Article 142 (1) of the constitution, which prohibits the taking away of property compulsorily without prompt payment of compensation.

It is also a violation of the Status of Children Act of 2009 as it only makes provisions for natural born children of former presidents. This automatically discriminates against the possibility of adopted children receiving any benefits. Moreover, it also violates articles 38B, 38D, 149 and 149E of the constitution.

Under Article 149A of the constitution, the Bill violates the right of a former president to work by proposing to cease his/her benefits if he/she engages in business, trade, or paid employment.

The Bill also states that if a former president is cited by any court for a criminal offence, he shall cease to be entitled to the benefits. This is in violation of the presumption of innocence which is guaranteed as a fundamental right by Article 144 of the constitution.

Explaining the unconstitutionality of the Opposition piloted amendments to the FMAA Act, Minister Nandlall said that Article 171 of the constitution resides the financial management of the State under the purview of the Executive.

As such, any Bill which can have the effect of creating some charge on the consolidated fund or which can seek to levy any tax or increase state expenditure must be brought to the National Assembly upon the recommendation of the Cabinet as signified by a Minister.

He further explained that the rationale of the restriction of Bills of a financial nature to receive the recommendation of Cabinet is in keeping of that general constitutional concept that the Executive has responsibilities of the financial affairs of the State.

This principal FMAA Act has a schedule which consists of agencies whose financial business and procedures are governed by the said principal Act. This amendment Bill, as well as a follow-up Bill, the Fiscal Management and Accountability (Amendment) Bill 2013, cumulatively seeks to remove these agencies from the sphere of Executive influence and to give them financial autonomy. This way, the Executive have no say in their financial affairs, including the fixing of their budgetary allocations.

“So you have a regime of agencies that can fix their budgets by themselves, yet you have the Executive with the constitutional responsibility of their financial affairs without the Executive having any connection whatsoever with these agencies. The impact is that they can fix their budget way above that which is contemplated by the Executive and therefore, create an additional charge on the consolidated fund…the constitution said that once a Bill has that effect it must come to the Parliament with the recommendation of the Cabinet…this Bill came to the Parliament via Mr. Carl Greenidge…this Fiscal Management and Accountability (Amendment) Bill of 2012 was not properly before the House,” the AG said.

Withholding Assent

Speaking directly to the Opposition’s intention to challenge the President’s decision in court, Minister Nandlall reminded that the Parliament is made up of the National Assembly and the President.

Laws are made by a Bill passing through the National Assembly and receiving the assent by the President. Article 170 of the constitution confers on the President, the power to either assent or withhold his assent to a Bill.

In a case where the President withholds his assent to a Bill, the said Bill must be returned to the Speaker within 21 days of the date when it was presented to him for assent. This must be accompanied by the reason/s for his withholding of assent.

“The president has done exactly this…procedurally the President has complied with the letter and spirit of Article 170 so this contention that the President is catapulting the nation in some form of constitutional crisis is the figment of people’s imagination. He is exercising a power which the constitution has conferred upon him,” the AG said.

He added that the constitution contemplates that the President must never be held ransom to, or a captive of, the National Assembly.

“It is not every Bill which passes through the National Assembly results in an automatic assent by the President. Our constitution resides in the President, a latitudinal power of discretion as to whether he will assent or not. The President on this occasion has decided that he will not assent, and he has complied with the procedure that the constitution outlines when he decides to withhold his assent,” Minister Nandlall said.

The President’s reasons for withholding his assent are not political in nature; instead his reasons as listed in his letter to the Speaker, are all grounded in the constitution itself. The President has a duty to ensure that the constitution is not violated. He added that “it is to give effect to that responsibility to ensure constitutional compliance, that the President acted in a manner to prohibit any form of infraction…the President is discharging his constitutional responsibility as faithfully as he can.”

Equilibrium of Power

The AG said that these legal collisions that have been taking place in the Parliament can be avoided through negotiations between parliamentary political parties; not by one section taking advantage of or holding at ransom, another.

He pointed out that Guyana’s Parliament was designed specifically to prevent this type of eventuality and to ensure an equally weighed balance of power in the National Assembly. This is precisely why the President has the residuary power to withhold his assent.

“There must be mutual respect, the President cannot bully the National Assembly and in the same way the National Assembly cannot bully the President. The constitution of Guyana says that,” he said.

Constitutional Crisis

With regards to accusations by the Opposition that by not assenting to the Bill, President Ramotar is creating a constitutional crisis,Minister Nandlall said that the country is at present dealing with legal issues that have never been dealt with before and as such, a judicious approach and a mature interpretation of the constitution is essential.

He made reference to comments which reportedly emanated from the AFC camp to the effect that they plan to move a ‘No Confidence’ Motion against the Government; thereby a resignation of the Government and precipitating elections within three months.

“This is a power thatthey have. You haven’t heard anyone from the Government accusing them of causing a constitutional crisis…the Government recognises that this is a power that the Opposition has, and it is an eventuality which can result if they chose to exercise that power which the constitution gives them. Similarly, President Ramotar has the power to withhold his assent and to give reasons for doing so. He has exercised that power under the same constitution that the Opposition would, if they proceed with a No Confidence Motion,” the AG emphasised.

He questioned, “How is it when they want to exercise power which they have, it is not a constitutional crisis, but when the Government exercises a power which it has, it is a constitutional crisis?”

He called on the Opposition to refrain from making wild and reckless statements.

Replies sorted oldest to newest

MitwahSenior Member

D-G get lost and go air out your poom beddings. Gina is not a reliable source.

5/14/1312:40 PM

Former Member

Originally Posted by Demerara_Guy:

Similarly, President Ramotar has the power to withhold his assent and to give reasons for doing so. He has exercised that power under the same constitution that the Opposition would, if they proceed with a No Confidence Motion,” the AG emphasised.

The sword cuts both ways.

5/14/1312:43 PM

Former Member

PRESIDENT’S POWER TO WITHHOLD ASSENT

Written by Mohabir Anil Nandlall, MP Hon. Attorney General and Minister of Legal Affairs

Monday, 13 May 2013 19:53, residents-power-to-withhold-assent&catid=2:news&Itemid=3" target="_blank">Source

THE President’s withholding of his assent to two bills which emanate from the Opposition, but which did not receive the support of the Government in the National Assembly, has, expectedly, evoked criticism from the Opposition Parties, as well as commentators. The two bills referred to hereof are the Former Presidents (Benefits and other Facilities) Bill 2012, No. 29 of 2012 and The Fiscal Management and Accountability (Amendment Bill) 2012, Bill No. 24 of 2012.

The Joint Opposition has accused the President of precipitating a constitutional crisis and one commentator has accused the President of usurping the functions of the Court and the Speaker of the National Assembly.

Perhaps it is imperative that I recite certain elementary but fundamental principles, as it is manifest that some find these principles, inexplicably, elusive.

Article 51 of the Constitution provides, “there shall be a Parliament of Guyana, which shall consist of the President and the National Assembly”. Article 170 of the Constitution outlines the mode to be utilised by Parliament in discharging its law making powers. For the avoidance of doubt, I set out this article in extenso hereunder:

Article 170
(1) Subject to the provisions of article 164, the power of Parliament to make laws shall be exercised by Bills passed by the National Assembly and assented to by the President.

(2) When a Bill is presented to the president for assent, he shall signify that he assents or that he withholds assent.

(3) Where the President withholds his assent to a Bill, he shall return it to the Speaker within twenty-one days of the date when it was presented to him for assent with a message stating the reasons why he has withheld the assent.

(4) Where a Bill is so returned to the Speaker it shall not again be presented to the president for assent unless within six months of the Bill being so returned upon a motion supported by the votes of not less than two-thirds of all elected members of the National Assembly resolves that the Bill be again presented for assent.

(5) Where the National Assembly so resolves that a Bill be again presented for assent, the Bill shall be so presented and the President shall assent to it within ninety days of its presentation.

(6) A Bill shall not become law unless it has been duly passed and assented to in accordance with this constitution.

In so far as it is relevant to the issues at hand, the following can be discerned as incontrovertible:

1. that the National Assembly is not Parliament; it is merely a constituent part of Parliament; that the other constituent part is the President;

2. that a Bill only becomes law after it receives, at a minimum, the approval of a majority of votes in the National Assembly AND the assent of the President;
3. that when a bill is presented to the President, he is constitutionally empowered to signify his assent to the same OR, to withhold his assent;

4. in the event that he chooses to withhold his assent, then he is obliged to return the Bill to the Speaker within 21 days of the date when it was presented to him for his ascent with a message stating the reasons why he has withhold his assent.

It is crystalline from the above, that the President acted within the constitutionally prescribed parameters when he withheld his assent and returned the Bills to the Speaker with his reasons for withholding his assent. In the circumstances, it is respectfully submitted that the contention that the President has caused a “constitutional crisis” is rooted in fantasy rather than reality. For the purpose of completeness, it is apposite that I dwell briefly with the reasons proffered by the President for withholding his assent.

The common reason advanced by the President for withholding his assent in respect of both bills, is grounded in the constitution itself and touch and concern the doctrine of constitutional supremacy. Article 8 of the Constitution declares the said constitution to be the supreme law of Guyana and states that of any other law which is inconsistent with it, that other law shall to the extent of the inconsistency, be void. The gravamen of the list of reasons advanced by the President for withholding his assent is that the two Bills collide with Article 8 of the Constitution and are accordingly void.

In sum, the reasons tendered by the President are not fanciful, irrational or even political, but are indeed principled and legal. Obviously, one is free to disagree with the reasons proffered. But that cannot be a rational basis for the injudicious assertion of a “constitutional crisis”.

A fundamental constitutional reality which must be recognized in this legislative matrix, is that the President is not a mere rubber-stamp of the National Assembly. The President has a constitutionally endowed jurisdictional freedom to withhold his assent to Bills if he believes them to be misconceived and wrong in principle. That is a presidential prerogative which cannot be whittled away at the altar of political expediency.

One commentator has advanced the contention that “it is the function of the Courts not the President to determine the constitutionality of legislation. It is the function of the Speaker, not the President, to determine whether a motion or a Bill requires cabinet approval”.

These assertions are deeply flawed. They are predicated open the misconception that the President by expressing his opinion, that the Bills are unconstitutional, he has somehow displaced the functions of the court as being the sole arbiter of unconstitutionally. This is a patently irrational assumption. Its irrationality can be vividly illustrated by examining the converse situation, which is, the President assenting to the Bill. Can it then, in that circumstance be intelligently argued that the President has determined the constitutionally of the Bill and therefore has effectively ousted the court’s jurisdiction from ever entertaining a challenge to its constitutionality? Certainly not! The legal truth is that the Court’s jurisdiction to question the constitutionality of Bills and actions by the state and its various organs can never be dismantled by the President or any other agency.

The power resided in the Speaker to determine whether a particular Bill requires the recommendation of Cabinet is actually the subject of an article in the Constitution and it relates to a particular type of Bill (Article 171). The Speaker’s power in this regard is not disputed. It is the President’s contention, however, that the Speaker fell into error, when he determined that the particular Bill under review did not fall into that category of Bills which requires the recommendation of Cabinet as signified by a Minister. This difference of opinion is clearly permitted.

The clear intendment of Article 170 is to ensure that the Executive President of this land is not held to ransom or captive of the National Assembly, and it is to be interpreted to prevent such an eventuality, so that there will be at all times due equilibrium between the two constituent components which comprise of that unitary whole called Parliament.

Any other interpretation will certainly result in a constitutional crisis.

5/14/131:01 PM

NehruBig Mouth Member

it is the constitution, stupid. OH Rass I feel like James Carver. IT IS THE CONSTITUTION, STUPID. It so SWEET I had to say it again.

5/14/134:46 PM

Former Member

AG cautions… : President is no rubber stamp of National Assembly : …says refused Opposition Bills will now have to get 2/3 support in House

Written by Gary Eleazar

Monday, 13 May 2013 19:53

GUYANESE Head of State President Donald Ramotar is within his right to withhold assent to any Bill under Guyana’s Constitution and, having returned it to the National Assembly, it will now require approval by at least two thirds of the 65 Members of the House before it can be returned to him, at which point he cannot withhold assent.

Attorney General, Anil Nandlall, who also serves as Minister of Legal Affairs and Legal Advisor to the Government, yesterday made the pronouncements in response to sections of the Opposition that have called the move by President Ramotar, a catalyst for a “Constitutional Crisis.”

President Ramotar recently informed Speaker of the National Assembly, Raphael Trotman, that he had withheld his assent from the two Opposition-led bills given that they were violative of the Constitution of Guyana and as such,were null.
The Bills in question include amendments to the Fiscal Management and Accountability Act as well as the Former President’s (Benefits and other Facilities) laws.
Nandlall, addressing a news conference yesterday hosted by the governing People’s Progressive Party Civic (PPP/C) at its Freedom House headquarters in Georgetown, said the positions being adopted by the commentators in the Opposition’s quarters are rooted in ‘fantasy’ and that the President is further protected by the Constitution from being held to ransom by the National Assembly.
Nandlall told reporters that the Opposition-led Bills did not enjoy the support of the Government and, as such, the criticisms are not unexpected.
“The joint Opposition has accused the President of precipitating a constitutional crisis and one commentator has accused the President of usurping the Court and the Speaker of the National Assembly.”
The Legal Affairs Minister, in response, reminded that Parliament is constituted of the President and the National Assembly and reminded that the power to make laws require the approval of the National Assembly and the assent of the President.
Nandlall reminded also that as provided for in the Constitution of Guyana, where the President withholds his assent and returns bills to the Speaker, it shall not again be presented to the President for assent unless within six months there is a 2/3 vote in the House to so do.
According to the Attorney General, it is only in this case that the President will have no power to withhold his assent and, “he (the President) in those circumstances must assent to the Bill.”
The Legal Affairs Minister is adamant that the National Assembly is not Parliament, but merely a constituent part with the other being the President.
Turning his attention to the two specific Bills which the Opposition had approved, but for which the President denied assent, Nandlall says “the President has acted within the constitutionally provided parameters when he withheld his assent and returned the Bills to the Speaker with his reasons.”
The Legal Affairs Minister further contended that the reasons offered by the President for withholding his assent are fundamentally grounded in the constitution itself and its supremacy.
Any proposed law that is inconsistent with the constitution is null and void, says Nandlall.
He noted also that the two Bills approved by the Opposition collides with the constitution “and are accordingly void.”
The Minister of Legal Affairs vehemently argues that the reasons tendered by the President are not “fanciful, irrational or even political but are indeed principled and legal.”
Nandlall told the media that the Opposition is free to disagree with the reasons offered by the President for the withholding of his assent, but it does not serve as any rational basis for a constitutional crisis.
He said that a reality which has to be accepted is that the President “is not a mere rubber stamp of the National Assembly.”
The President, he says, has jurisdictional freedom to withhold his assent to Bills, if he believes them to be misconceived.
“That is a Presidential prerogative that cannot be whittled away at the altar of political expediency,” Nandlall declared.
He reiterated that the constitution ensures that the President is not held to ransom or held captive by the National Assembly.
“There will be at all times due equilibrium between the two constituent components which comprise of that unitary whole called Parliament,” he posited.

*** Pull Quote: “That is a Presidential prerogative that cannot be whittled away at the altar of political expediency”

*** PULL QUOTE: The President acted within the constitutionally prescribed parameters when he withheld his assent and returned the Bills to the Speaker with his reasons for withholding his assent. In the circumstances, it is respectfully submitted that the contention that the President has caused a “constitutional crisis” is rooted in fantasy rather than reality.

5/14/135:17 PM

Former Member

Originally Posted by Nehru:

It so SWEET I had to say it again.

And again.

5/14/135:18 PM

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President’s non-assent of Opposition’s Bills in conformity with constitution- Bills collide with constitution, extant laws

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