THE CHAIRING OF CABINET
July 4, 2015 | By KNews | Filed Under Features / Columnists, Peeping Tom, Source
Article 106 (3) is mandatory, not permissive. It provides that the President shall chair Cabinet. It also provides what should happen should the President be absent. In that instance, the Cabinet shall be chaired by the Prime Minister. In the absence of both, the Cabinet shall be chaired by someone designated by the President.
When Forbes Burnham was undergoing his medical treatment at the Georgetown Hospital, on that very day there was a Cabinet Meeting. It was chaired by the then Prime Minister, Desmond Hoyte.
The constitutional position is quite precise. The President, once present, has to chair Cabinet. Only if he is not present can it be chaired by someone else.
Article 99 of the Constitution has no application in this instance because Article 103 is not a general provision; it is specific and mandatory provision. The President of Guyana is therefore correct in his assertion that to have anyone chair Cabinet in his presence would be unconstitutional.
But back to Article 99 which deals with the vesting and exercise of Executive Authority. This article vests executive authority in the President but it does provide for such authority to be exercised directly by him or by his subordinates.
There is some matter of confusion about this article. I have seen it being interpreted as meaning that the President can delegate executive authority. This is Not so.
Executive authority is vested in the President. It is held exclusively by the President. But the exercise of executive authority may be done by either the President or by others. The exercise of executive authority by someone other than the President does not mean that executive authority has been delegated.
Executive authority cannot be delegated. It is vested in the President. But such authority can be exercised by others, but that exercise is always done in the name of the vesting authority which is the President.
There is a difference between something being delegated and something being exercised by another. The latter can take place without delegated authority.
Parliament for example, in certain circumstances, can make provision for the exercise of such functions. This is not a delegation.
This issue has arisen in commentaries over the non-compliance of the Cummingsburg Accord. Under that agreement, the Prime Minister was supposed to chair Cabinet. Long before the elections, this column had pointed out that this would be unconstitutional.
The signatories of the agreement should have had this flaw remedied. Their failure to recognize the unconstitutionality of the Agreement has now led to a major political crisis.
The Cummingsburg Accord was the basis of providing political comfort to certain constituents that APNU would not act as a juggernaut in the coalition with the AFC.
The support that the AFC brought to the coalition has been rightly assumed to have led to the coalition’s victory and therefore the alleged reneging on the commitments of the Accord is now the subject of great distress.
The chairing of Cabinet is non-negotiable. For the President to allow the Prime Minister to chair Cabinet would be in violation of the Constitution.
But what about the other aspects of the Accord such as the one that provides for the Prime Minister to be responsible for domestic affairs.
There is no constitutional impediment to this happening. That this is not happening is deeply troubling and may expose the fragile shell of the coalition, or so some people feel. The greatest adhesive however is political power.
Political power and all that comes with it may be sufficient to hold the coalition together. It may render this issue of control over domestic affairs moot.
But a question still needs to be asked, not just for the record, but for a deeper understanding of this issue. When was it discovered that it would be unconstitutional for the Prime Minister to Chair Cabinet?
