THERE IS NO RIGHT OF AUTOMATIC ASSENT
March 20, 2014, By KNews, Filed Under Features/Columnists, Peeping Tom, Source
Even in jurisdictions where parliament is supreme, the sovereign reserves the right to refuse assent to Bills passed by the National Assembly. Supremacy of parliament merely means that a law passed in supreme legislatures cannot be overturned by the Court.
In Britain there is supremacy of parliament. In Guyana, the Constitution is supreme. This is why there is what is known as the principle of judicial review of laws passed by the Parliament. The courts can and have exercised judicial review of legislation.
It is interesting that A Partnership for National Unity (APNU) has accepted the fact that only the Court can determine the constitutionality of legislation. It is hoped that since the party accepts this, it will respect the rulings of the Court and abide by such rulings until such time as these are overruled by a higher Court.
The President does not determine the constitutionality of legislation. But this does not prevent him from having an opinion on the constitutionality of legislation.
Indeed, even parliamentarians from the opposition benches have expressed opinions on the constitutionality of legislation and have even gone as far as challenging laws in the Court.
Anyone is therefore free to hold an opinion about the constitutionality of legislation. If someone seeks permission to have a march, the police in granting permission for that march are often called upon to balance the possible threats to law and order with the right to freedom of expression and association of the applicant.
Now suppose the police were to refuse permission. The applicant can claim that his rights to expression and freedom of association were being violated. The individual can protest to the police that his constitutional right is being denied.
Are the police then at liberty to tell him that it is not for the applicant to determine the constitutionality of the actions of the police; that it is for the Court to do so?
No, the person making the application is free to have an opinion on the matter. The courts pronounce on disputes relating to the constitution.
The President of Guyana has veto powers over legislation passed by parliament. He has the right to withhold his assent to Bills.
This right is explicitly provided for in the Constitution which does not circumscribe the grounds upon which refusal can be made. Therefore, the President can withhold his assent for any reason, including his opinion that a Bill is unconstitutional or that it is clumsily drafted. He can certainly withhold on the grounds that the Bill is inconsistent with Executive policy or that he does not like it. He can choose any reason to withhold his assent.
If assent is withheld, the President is required to indicate this to the Speaker and to provide his reasons for withholding assent. The National Assembly may override the presidential veto by a two-thirds majority.
APNU is withholding its support for the Anti Money Laundering and the Countering of the Financing of Terrorism Bill on the grounds that the President has not given his assent to pieces of legislation introduced and passed by the opposition parties. Amongst the pieces of legislation is one related to local government elections which the President believes is unconstitutional and thus within his right to withhold assent.
Also included is a Bill intended to give effect to the independence of the judiciary by ensuring that the law is amended to allow the judiciary to draw its financing directly from the Consolidated Fund.
The government reportedly has some reservations about the legal drafting of this Bill. But the Bill in itself is considered unconstitutional because it creates a charge on the Consolidated Fund without the consent of Cabinet. The Constitution itself holds that where a charge on the Consolidated Fund is created this can only be done with the approval of Cabinet.
During the passage of the Bill in question, the approval of Cabinet was not signaled. There is no need to test this issue in our Courts because the Court in the Budget cuts case had pronounced on this very question about the constitutionality of Bills and motions that create a charge on the Consolidated Fund.
APNU is therefore in deep outer space when it implies by its arguments that the President has to assent to Bills passed by the National Assembly. The supreme law of the land does not make this mandatory.
The opposition wishes the President to assent to its amendments to the Fiscal Management and Accountability Act. These amendments, well-meaning in intent, allow for the creation of direct charge on the Consolidated Fund.
However, the Court has ruled in the Budget cuts case that no Bill can create such a charge without the consent of the Cabinet. If the President is to give assent to this law, it will mean that he is not heeding the implications of the Court ruling in the Budget cuts’ case.
