Dear Editor,

Clerk of the National Assembly, Mr. Isaacs, continues to operate in excess of his powers in blocking the convening of the National Assembly. The Constitution nor the Standing Orders do not allow the Clerk to interpret Standing Orders. Standing Order 6 outlines the duties of the Clerk. There is no mention of a right to provide an opinion on whether the Assembly can convene or not. For any Clerk to block the direction of the Speaker to convene the Assembly, and to do so on the basis that the power to convene lies with the government in a situation where the government is a minority in that very Assembly, is not only unconstitutional, illegal, in breach of the Standing Orders, it is also a usurpation of powers and authority not provided by the Constitution, Standing Orders, acceptable rules of conduct and behaviour in the public interest. Even if Standing Order 8(2) is unclear, it naturally and automatically becomes a matter not provided for in the Standing Orders. Therefore, by virtue of Standing Order 4(6) “(6) The Speaker in the Assembly and the Chairperson in Committee shall have power to regulate the conduct of business in all matters not provided for in these Standing Orders.” That power is not vested in the Clerk, it is vested in the Speaker.

Once again, there is absolutely nothing in the Standing Orders that grant the Clerk the power to hold hostage and suspend indefinitely the assemblage of the National Assembly. Standing Order 8(2) itself states that “The Clerk shall as soon as possible inform each Member in writing, or telegram or by appropriate electronic means of any such earlier meeting.” Standing Order 8(2) itself provides no aperture for the Clerk to interpret Standing Order 8(2) or to provide an opinion on whether the Speaker is within his authority to call the meeting of the Assembly under 8(2) or to stop, impede or challenge the Speaker’s call. In fact, Standing Order 8(4) states in quite explicit fashion as follows “Forthwith upon receipt of any direction under paragraph three (3) of this Standing Order, the Clerk shall inform every Member of the Assembly, personally, if practicable, of the day and hour appointed by the Speaker for the holding of the Extraordinary Sitting of the Assembly and of the business to be transacted at such meeting.”

This notion that the power to convene the Assembly rests with the government in a minority government is not only in flagrante delicto with basic tenets of democratic norms, it is an opening to the creation and consolidation of dictatorship. In any event, it is mind-boggling how the Clerk arrives at his conclusion when, for example, Standing Order 28(2) states “With the consent of the Speaker, a Government motion may be placed upon the Order Paper for the Sitting of the day following that on which notice was given to the Clerk.” How does a government with the power to unilaterally convene, or not convene, the Assembly require the consent of the Speaker to have a government motion heard earlier than entitled? Undoubtedly, this provision confirms the special powers of the Speaker. Nowhere in the Standing Orders does it state that the government holds the power to convene the Assembly. While that may occur in practice in cases where government holds the majority in the Assembly, it is dangerous to the constitutional separation of powers and democracy itself for a minority government to dictate when the opposition-controlled Assembly can convene, if at all.

The Clerk cannot dictate to the Speaker on matters involving interpretation of the Standing Orders. Matters of perceived ambiguity in the Standing Orders are left to the discretion of the Speaker to resolve those ambiguities pursuant to that very specific power granted to the Speaker by Standing Order 4(6). The Speaker’s power over the Clerk is most pellucidly outlined in Article 57 and 158 of the Constitution. Article 57(1) states “There shall be a Clerk and a Deputy Clerk of the National Assembly, and appointments to those offices shall be made by the President acting in accordance with the advice of the Speaker.” The President must act in accordance with the advice of the Speaker to appoint the Clerk. Article 158(2) allows the National Assembly to remove the Clerk by majority vote for any cause or for misbehaviour. Article 158 (2) states “The Clerk shall be removed from office by the President if, but shall not be so removed unless, the National Assembly, by a resolution which has received the affirmative votes of a majority of all the elected members thereof, has resolved that he ought to be so removed for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.”

The Clerk’s refusal to act on the instructions of the Speaker exercising his authority under SO 8(2) and 4(6) and his continued deliberate blocking of the convening of the Assembly when ordered to convene by the Speaker, in contravention of his (the Clerk’s) duty to convene when ordered as per Standing Order 8(4), may very well constitute misbehaviour under Article 158 of the Constitution. Finally, if the Clerk refuses to convene the Assembly despite the Speaker’s instructions and the Assembly does not meet, we cannot continue this tango to eternal suspension of the legislative arm of a state already operating in executive lawlessness and debauchery. That very act of frustration of the Speaker’s instructions is one that cements executive authoritarianism over the legislature. At that point, the Speaker would certainly be within the public’s interest to convene the Assembly himself by bypassing the Clerk and at the first sitting, a motion and vote to remove the Clerk, with examination of implications for his benefits and pension given the gravity of his actions, should be within order.

Yours faithfully,

Maxwell