Prorogation of Parliament unconstitutional and illegal – former Presidential Advisor
“…President has no power without the confidence of the Assembly”
By: Zena Henry, November 17, 2014, By KNews, Filed Under News, Source - Kaieteur News
The legality of President Donald Ramotar’s decision to prorogue Parliament has not seen the type of scrutiny that it warrants, former Presidential Advisor and Consultant, Ramon Gaskin believes. He is adamant that the President’s move is illegal and unconstitutional.
Gaskin told Kaieteur News yesterday that President Ramotar has no power once he does not have the confidence of the House of Assembly. He charged that the expression of No-Confidence by the combined opposition has automatically taken away the powers given to his minority government since the Constitution clearly states that once the government does not enjoy the confidence of the House, its only options provided by law, are to either resign or call General Elections.
Former Presidential Advisor
and Consultant, Ramon Gaskin
Gaskin, who once advised former President Cheddi Jagan, explained that the way the Constitution is written, one cannot pick an Article and apply it in isolation of the others.
He said that it must be applied in its entirety to the separations of power; President, National Assembly, Judiciary etc.
Under Article 106 (6) of the Constitution, it is stated that “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.”
Article, 106 (7) goes on to say that, “notwithstanding its defeat the government shall remain in office and shall hold an election within three months or such longer period as the National Assembly shall by resolution supported by no less than two thirds of the members determine and shall resign after the President takes oath of office following elections.” Gaskin emphasized that ‘shall’ in this case, makes it mandatory for the Government to resign if it is defeated.
However, under Articles 70 (1) of the Constitution which states that, “The President may at any time by proclamation, prorogue the parliament”, the Head of State has chosen to do just that for a maximum of six months.
This, Gaskin urged, is unconstitutional. He opined that 106 of the Constitution and 70 does not conflict or collide with each other since the President’s powers can only be enjoyed with the support or confidence of the majority.
“The government can only remain in office if it commands the confidence of the House, and the day they lose the confidence of the House they have to resign and hold fresh elections, and the President cannot use his extraordinary powers under 70 to prorogue after he would have lost the confidence of the House.”
The operative section, the philosophical underpinning within this confusion is having the confidence of the House, Gaskin posited. Under 106, he said, it states that the loss of confidence is expressed ‘by vote’. In his view “by vote” is the mere confirmation or “paperwork” expressing the already stated “no confidence.”
In that light, he said the President cannot use his power to prevent the elected members from physically expressing their lack of confidence. “The President is purporting powers after the expression of no confidence and preventing the MPs from expressing themselves. Once you have been told and you know that there is no confidence in you, it is time to walk,” Gaskin reiterated.
The reality, he said, is that the Government has lost the confidence of the House and the President cannot presume to use reserve powers to deny the workings of the Constitution. The expression of no confidence is enough for Article 106 to operate, he said.
The opposition in essence has fired the government and the no-confidence ‘vote’ is only to serve them their dismissal letter. Under normal circumstances he said the President can use all powers constitutionally applied to him providing that he always has the confidence of the House.
Gaskin expressed that Guyana’s Constitution thrives on a majoritarian system and the current situation is a consequence of having a minority government. “The constitution has given that power to the majority of elected members to remove you if they don’t have confidence in you.” He said though the Constitution allows the party with the largest number of votes, though not the majority to hold the executive, they can only hold it with the House’s approval.
“What the President has done is absolutely illegal. And to hold on to office now, in the face of the no-confidence motion, again, is illegal. This government, at this present time, does not have a legal basis for remaining in office.” Gaskin said the government after the expression of no-confidence, acts as a caretaker for three months until the new President takes the Oath of Office.
If it is mentioned that there has been no resolution or no voting, Gaskin said it must be remembered that the President is the one who “unlawfully” blocked the voting process. One arm, the executive cannot under bogus powers, frustrate the legislative branch. He said “the President cannot abuse the Constitution to defeat it.”
Source - http://www.kaieteurnewsonline....residential-advisor/
