THE WILL OF THE PEOPLE DOES NOT ANNUL PROROGATION

November 15, 2014, By KNews, Filed Under Features / Columnists, Peeping Tom, Source - Kaieteur News

There are unsupported and unsubstantiated arguments being to the effect that the manner in which the President exercised his prerogative to prorogue parliament was not in keeping with the way such powers were intended to be used.

Unfortunately, those making these arguments did not state what are the circumstances for which prorogation were intended. Nor did they attempt to argue why they felt that President Ramotar had misused his prerogative.

By convention, the exercise of a prerogative of the Crown carries broad discretion. As such, any argument that finds that the exercise of such a prerogative is unwarranted, though legal, is likely to be an argument of convenience.

I will contend here today that the issue that people should be deliberating on is not if the President properly exercised the prerogative of prorogation. (Those who feel he did not can test it in the Court of Law since the right to prorogue is spelt out in the Constitution.) The issue that people should be reflecting on is why the prerogative was not exercised long before this week.

There were clear circumstances which in my humble estimation could have triggered a prorogation of parliament in the past.

An important feature of constitutionalism is the separation of powers. The legislature should not seek to administer the affairs of the government from the benches of the legislature. The separation of powers also anticipates a commodious relationship between the three arms of the State.

I hereby advance the argument that where a discommodious relationship exists between the Executive and the legislature or between the legislature and the judiciary, the Crown can opt to prorogue parliament as many Kings and Queens have done in the past.

The first circumstance that could have triggered a prorogation of parliament occurred at the start of the 10th parliament. As soon as the 10th parliament commenced, the opposition went on a mad rush to reconfigure the composition of the National Assembly so as to deny the party which had won the most seats in the National Assembly, a minority on most of these committees.

The government felt that this was against parliamentary convention. I believe that they could have used this as the basis to trigger a prorogation until there was clear understanding amongst all of the sides as to the principles that should underlie the composition of parliamentary committees.

The opposition parties justified their hijacking of control of key parliamentary committees on the grounds that they, the opposition, represented the will of the people. It is a contestable argument but in any event, the will of the people does not annul the prerogative of prorogation.

The second circumstance that could have triggered prorogation was the decision by the opposition to introduce legislation without the agreement of the government. This is against parliamentary tradition and could have led the government to contend that this was an attempt by the opposition to run the country from the opposition benches which is beach of the separation of powers.

There could have been a resort to prorogation so as to allow time to test this issue in court, but since the President could have refused to assent to legislation, it was not necessary to be this drastic.

The third circumstance that caused a discommodious relationship between the Executive and the legislature and which could have triggered a prorogation was the attempt by the opposition to sanction the Minister of Home Affairs. The Minister was not accused of being in contempt of the Chair nor was he the subject of a finding by the Committee of Privileges for any breach of parliamentary privilege. Yet there was an attempt to have him removed from the Assembly. The Speaker eventually overruled this attempt to silence the Minister. If he had not, it could have triggered a prorogation.

The fourth circumstance that could have led to prorogation was the decision taken in relation to the Chief Justice’s ruling on the Budget Cuts of 2012. The President could have decided that the approach taken by the National Assembly to the Chief Justice’s ruling discommoded the relationship that ought to exist between the judiciary and the legislature and this threatened the separation of powers and thus could have triggered a prorogation of parliament.

The fifth circumstance concerned the decision to refer the Minister of Finance to the Committee of Privileges. The President could have argued that the Assembly was acting in a manner that was inimical to parliamentary mores and opted to prorogue the National Assembly.

If in all five of these situations if the President had prorogued parliament he would have been acting in accordance with the powers granted to him under the Constitution. He would have been thus acting constitutionally. But he would not have been acting democratically.

And this is the issue that people need to appreciate. The fact that a measure is constitutional does not make it democratic. When the 1980 Constitution gave to President Burnham, the power to dissolve or prorogue parliament if faced with an attempt to remove him as President, this was not a democratic provision. But it was constitutional. It was lawful but not democratic.

Similarly, prorogation may be constitutional but not necessarily democratic. It can be democratic such as when there is a catastrophe that necessitates parliament being prorogued since it cannot meet. But prorogation can also be undemocratic. So too however can be no-confidence motion against a democratically elected government.

Source - http://www.kaieteurnewsonline....t-annul-prorogation/