Government’s Position in Respect of Bills
3035 17 Dec, 2012
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Sir, my Hon. Colleague Member commenced her presentation by referring to statements which have been made in the press by Members of the Opposition in relation to the Government’s position in respect of bills which emanate from the Opposition. The clear argument of the Hon. Member is that the Government’s position seems to be one that will absolutely reject a bill coming from the Opposition simply because it comes from the Opposition. I wish to take this opportunity to reject that notion absolutely.
Mr. Speaker: I wish to thank you for clarifying that matter.
Mr. Nandlall: The Government’s position is based upon principles. The principles that will inform the Government’s position as to whether they will support a bill which emanates from the opposition are as follows:-
1. We will not support a bill emanating from the opposition which we feel is violative of the Constitution.
2. We will not support a bill emanating from the Opposition that we consider to be inconsistent with current Executive policy or future Executive policy.
3. We will not support a bill which comes from the opposition which we in the Government, who have the financial responsibility of managing the financial resources, form the opinion through the Minister of Finance that we do not have the financial resources to enforce and execute that law.
4. Finally, we will not support a bill that we consider to be unnecessary.
Those are the principles that will inform the Government’s position on whether or not it will support a bill which comes from the Opposition.
The Bill that is before this House in the opinion of the Government is (1) unnecessary and (2) unconstitutional. Therefore, we cannot support the Bill. I will give the reasons why. Sir, you would recall that I dispatched two letters to Your Honour and carbon copied to the Hon. Leader of the Opposition, the Hon. Member Mrs. Volda Lawrence and I believe my Hon. colleague Mr. Khemraj Ramjattan, in which I detailed the reasons why the Government will not support the Bill. I wish to oralise and expand on those reasons now.
Sir, the first rule in lawmaking, and I get that from the Chief Parliamentary Counsel - he is the expert - is to examine whether we need a law. That is the first thing. What mischief this law is intended to address.
Now, my friend has spoken at lengths about the need for reform of the Parliament and the staffing arrangements and to invest the Clerk with powers of employment, et cetera, without identifying a single problem in respect of the current functioning of the Clerk of the National Assembly and the support staff. Not a single argument has she advanced as to what part of the Clerk’s office is not functioning. Whether the staffs here are inadequate; whether they are incompetent; whether they are inefficient, but we are passing a law that will create a whole new regime of how staff is going to be hired.
Sir, there is a booklet distributed by the Australian Parliament. It is a legislation handbook printed and distributed by the department of the Prime Minister and Cabinet of Canberra Australia. It says the following in relation to legislation, under the introduction chapter:
“Departments should give careful consideration to whether legislation is actually needed or whether administrative action would be sufficient.”
That is the first point that they make in Australia. Secondly, they say:
“Legislation should not be proposed simply to give a matter visibility. The limited drafting resources of the Office of Parliamentary Council and the time available for Government business in Parliament must be used for proposals which cannot proceed without legislation.”
Now, I do not believe that any Government and of course this Government, will be opposed to any initiative that will strengthen in an administrative way the current capacity of the Clerk’s Office of the National Assembly and his complement of staff. But whether we want to do that by legislation is the position with which I take umbrage.
So Sir, legislation first...
Mr. Speaker: Mr. Attorney General have you check to see how the Clerk’s relationship vis-a-vis the Assemblies in Trinidad and Tobago, Barbados...
Mr. Nandlall: I am getting to that, Sir. Ours and oftentimes my colleague Cde. Gail Teixeira and the President, made on several occasions the pivotal point that ours is a Constitution which is advanced more than many other Constitutions in the Caribbean and indeed the Commonwealth.
In relation to the Clerk of the National Assembly, Guyana’s Constitution and not this Constitution- this document, but dating back to the 1966 Constitution, the 1970 Constitution and the 1980 Constitution, incidentally drafted by the People’s National Congress (PNC) when they were in power, all of them gave a uniformly expansive coverage to the Office of the Clerk of the National Assembly. A coverage in the supreme law of our country that is appreciably superior to that which is given to it by other countries.
In fact, my examination of constitutions in the Caribbean led me to conclude that only Jamaica has a constitution that gives that amount of coverage that our Constitution gives to the Office of the Clerk of the National the same amount of coverage – the Jamaican Constitution. [Mrs. Backer: What do you mean by coverage?] It means that the amount of provisions that are dedicated exclusively to the Clerk of the National Assembly, the matters which are covered by our supreme law of the land in relation to Clerk of the National Assembly, the fact that the Office itself is expressly established, not by an ordinary legislation, but by the Constitution itself. And as I get deeper in my presentation I will demonstrate the ambit of power and protection and independence which our Constitution gives to the Office of Clerk of the National Assembly that is appreciably far superior to that which is given by the other Constitution. Take for example Sir, your Honour mentioned Trinidad, in Trinidad the Clerk of the National Assembly is mentioned en passant in the Trinidadian Constitution. It is not an office established by the Trinidad Constitution, absolutely not. I wish to refer to the Constitution of Zambia. It says this in Article 73:
“There shall be a Clerk of the National Assembly and such offices in the department of Clerk of the National Assembly, as maybe prescribed by an Act of Parliament.”
Our Constitution not only establishes the Office of the Clerk of the National Assembly, but for that prescribed in the superior law of the land how that office must function, the terms and conditions of the holder of that office and many other matters ancillary to that office.
We did not leave it to an ordinary legislation to make those provisions. We made it in the Constitution itself. Belize, for example, and my friend/colleague cited Belize, because Sir, Belize did not have it in their Constitution in any elaborate way they passed a legislation, separate and apart from the Constitution that provides elaborately for the staff of the Parliament; the staff of the Clerk of the of the National Assembly.
So Sir, the point I want to make is that our Constitution provides for the Clerk of the National Assembly in a most elaborate fashion. Therefore, to relegate and of course, we have to recognise that this Constitution is the supreme law of the land and it is a trite principle of Constitutional Law and in order of priority of sources of law and we all know what they are in Guyana. If a matter or an office is provided for by the most superior of all our sources of law, then if you try to provide for it in an source of law that is inferior to that superior source, then you are diluting the significance of that office or that issue and that is what this Bill seeks to do. It seeks to relegate the Clerk of the National Assembly. I want to quote two Articles of the Constitution, to demonstrate the point I am making. Article 222 of the Constitution lists a number of offices created by this Constitution and provides for the remuneration packages of those office holders and protects them as a charge on the Consolidated Fund. It reads this:
“There shall be paid to the holders of offices to which this Article applies such salaries and allowances as may be prescribed by any other law or in the case of Clerk and Deputy Clerk of the National Assembly as may be determined under Article 158 (4).”
Not an ordinary legislation, but by the Constitution itself. And then it lists, the number of offices that it applies and it says that these office holders remuneration package is to be a direct charge on the Consolidated Fund and that no one, including this Parliament, can alter that remuneration package to the disadvantage of the office holder.
Among the offices listed are as follows: the Office of the President, Speaker, Deputy Speaker, Clerk and Deputy Clerk of the National Assembly, any Judge of the Supreme Court, Members of the Elections Commission, Judicial Service Commission, Public Service Commission, Teachers Service Commission, Police Service Commission, the Ombudsman, the Director of Public Prosecution, Auditor General and the Commission of Police. All of these; these are all independent constitutional office holders whose remuneration packages are guaranteed by the Constitution as a direct charge on the Consolidated Fund.
Therefore, to relegate that high office by passing an ordinary legislation to make provisions for the remuneration of the Clerk of the National Assembly is a dilution and a violation of the Constitution.
I gather from listening to my colleague that the thrust of this Bill seeks imbue in the Clerk a greater degree of independence. I submit that the Constitution has done that in an institutional way already. Therefore, that independence has constitutional imprimatur and protection. To do it by ordinary legislation is in principle, simply wrong and violative of the spirit of the Constitution.
Now let us look at the Bill – the long title. First of all, this is a Bill that has no marginal notes, that is the first thing.
Mr. Speaker: Hon. Attorney General I did refer in my ruling that Members of the Opposition do not have the benefit of expert legal drafters, so they have to make do with what they have.
Mr. Nandlall: I know Sir.
Mr. Speaker: Maybe you can help us to tidy up.
Mr. Nandlall: Sir, at the end of the day, if it is passed by this Parliament, it becomes law and marginal notes in our law are not insignificant. In fact, our Interpretation and General Clauses Act speaks specifically to marginal notes.
But let us go to the Bill itself, the Long Title says:
“An Act to set out the responsibility and authority of the Clerk and Deputy Clerk of the National Assembly of Guyana and to provide for the establishment and administration of an independent Office of Clerk of the National Assembly.”
Now the Constitution, as I said, guarantees that independence as well, expressly and by implication. But then, I go to Clause 17 of the Bill, under the caption, “Responsibility of Clerk” and the Bill reads this:
“The Clerk of the National Assembly shall be responsible to the Speaker of the National Assembly.”
And the long title and the whole policy behind this Act is to invest that officer holder with independence, then the Bill itself makes the Clerk responsible to the Speaker of the National Assembly and I say that that is a self defeating and implosive situation.
I go on to clause 23, “Review of Appointments”. Again the Speaker has a role that is superior to the Office of the Clerk. The Bill reads:
“The Clerk of the National Assembly shall establish a procedure for reviewing appointments made under section 19 that are subject of any complain by a member of staff...
(2) The procedure shall be approved the Speaker of the National Assembly before being established.”
So again, you find the independence that the Bill seeks semantically and schematically to imbue in this office holder is penetrated and violated by the Bill itself. So Sir, those are my preliminary observations.
The major provisions I will dwell upon briefly. Clause 2, “There shall be in accordance with Article...” Remember Sir, I said that it was unnecessary and it is unconstitutional.
“There shall in accordance with Article 57 of the Constitution be appointed as an Office of the National Assembly, a Clerk of the National Assembly.”
Well that is in the Constitution, so that is unnecessary. There is no reason for that provision to be there and this in any event is simply duplicating that which the highest law of the land already says exists. So it is otiose.
Then they list the functions of the Clerk of the National Assembly. The functions of the Clerk of the National Assembly are adequately set out in our Standing Orders and by the traditions and conventions of this House. I do not think that anyone here, perhaps Mr. Ramjattan, but apart from him, has any doubts as to what the functions of the Clerk of the National Assembly are. But then we go on, clause 4 of the Bill says again:
“There shall be in accordance with article 57 of the Constitution also appointed as an officer of the National Assembly, as a member of staff of the Office of the Clerk of the National Assembly, a Deputy Clerk of the National Assembly.”
However, that is already there in the Constitution, so this is another duplicitous unnecessary provision. Then it lists the functions of the Clerk. I said, administratively we are not in doubt of what the functions of the Clerk of the National Assembly are. Therefore, if we are in doubt we can pass so kind of rule book, as it is done in the other countries or we can enhance and improve on our Standing Orders, but to make this the subject of legislation, is simply wrong.
Then we have “Acting Clerk of the National Assembly”, that is provided for by article 6. Now this is a serious provision. It reads this:
“In the event of both the Clerk of the National Assembly and the Deputy Clerk of the National Assembly being unable for any reason, including if there are vacancies, to carry out their duties the Speaker of the National Assembly, may appoint any person to act as Clerk of the National Assembly for the time being and any persons so appointed, so long as his or her appoint continues, have all the powers and the functions of the Clerk of the National Assembly.”
Sir, this is violative of Article 57. Article 57 resides in the President a power to appoint a Clerk and a Deputy Clerk of the National Assembly. It is a presidential power. This Bill seeks to confer that power on the Speaker of the National Assembly to appoint someone outside of the Clerk and the Deputy Clerk to perform the functions of the Clerk of the National Assembly. That is flagrantly in violation of Article 57 of the Constitution.
And if we are in doubt as to how presidential powers are to be exercise, Article 111, the framers of the Constitution did not leave it in doubt, they expressly provide on how presidential powers are to be exercise and those are listed in Article 111 of the Constitution. Article 111 sets out clearly that when the President has the power and he is to exercise it upon the advice or recommendation of anyone else, in this case Sir it is your good self, then if your Honour makes a recommendation and the President says no and remits it back to you and your Honour reconsiders it and sends it back, the President is obliged to accept your Honours recommendation a second time. So it is not that the framers of the Constitution did not cogitate and deliberate on how Presidential powers are going to be exercise. What this Bill seeks to do is to denude from the President a power which is vested in the President by the Constitution and resides, unfortunately, in your good self that power, putting you in problems, Sir.
Then sub-clause 2 of clause 6 continues and says that your Honour can appoint this person... it says:
“Notwithstanding subsection 1, in the absence from duty and other inability to perform the functions of both Clerk and Deputy Clerk of the National Assembly, extend for a period of more than three months, no person shall after the expiry of that period be appointed to act or continue to act as Clerk of the National Assembly, except with the approval of the Speaker and the appointment of the President.”
So the person can trespass for three months and then can seek Presidential approval. So Article 57 of the Constitution is being suspended essentially for three months.
Then sub-clause (3) compounds the problem further, where it says that:
“Both the Clerk of the National Assembly and the Deputy Clerk of the National Assembly are for some reason unable to carry out their duty and there is no Speaker of National Assembly or the Speaker of the National Assembly is absent from Guyana or is for any reason unable to carry out the functions of the Office, the Deputy Speaker may appoint a person to act as Clerk.”
So, not only is the Presidential power taken away and given to your Honour, if you are overseas it dilutes further, the Presidential power is relegated further to a Deputy Speaker of the National Assembly, which is a even more pronounced violation of the Constitution. [Interruption]
Then the next two lines that follow, obviously I believe it is a typographical error because it makes no sense. It says:
“National Assembly, while both Clerk of the National Assembly and Deputy Clerk of the National Assembly are unable to carry out their duties.”
That simply does not make grammatical sense.
Then I move to clause 7. Clause 7 is another very important clause:
“The Clerk of the National Assembly and the Deputy Clerk of the National Assembly shall each be appointed by the President on the recommendation of the Speaker.”
That is identical to Article 57, so again it is unnecessary. But it continues:
“After consultation by the Speaker with (a) the Prime Minister (b) the Leader of the Opposition and (c) such other members of the National Assembly as the Speaker considers desirable.”
The Constitution resides with you, a power to advise the President on who to be the Clerk. This Bill now adds a responsibility to you that is ultra virus the Constitution. So that you are now ... [Interruption] ... That is the point. I do not understand how it is that I have not gotten these points over. They have to change the Constitution because if tomorrow the President calls on the Hon. Raphael Trotman pursuant to Article 57 and says to Mr. Trotman, “Make a recommendation” and the Hon. Mr. Trotman refuses to consult with the Opposition and refuses to consult with the Prime Minister and he refuses to consult with any other Member, as this Bill obliges him to do, the Constitution tells him that he does not have to do that, so that this Bill is ultra vires and extra the Constitution. This Bill is imposing responsibilities that the supreme law does not impose, it is simple as that.
Mr. Speaker: Hon. Member your time is up.
Prime Minister and Minister of Parliamentary Affairs [Mr. Hinds]: Mr. Speaker, I move that the Hon. Member be given another fifteen minutes to continue his presentation.
Mr. Nandlall: So that is again violative. Then we come to the terms of the Clerk of the National Assembly and the Deputy Clerk of the National Assembly. Those are matters which are adequately and expansively provided for by Article 158 (4) of the Constitution and it says that so why say that when the Constitution says it already? You just do not pass a law because you want to pass a law. The thing is in the most supreme document of the country, why are you relegating it just simply to repeat it? This is obviously completely unnecessary.
Then Article 158 – again it is repeated. Clause 9 of the Bill it is a replication of Article 158 (5) (c). Clause 10 of the Bill is a replication of Article 158 sub-sections (1) and (2). Then we deal with the vacation of office. Now Sir, Article 158 itself speaks to how the Clerk of the National Assembly is to vacate his office. These are highly entrenched provisions of the Constitution, one cannot digress from the express provisions of the Constitution and that is what this seeks to do. First of all, the Constitution says that the Clerk shall be removed from office by the President, but shall not be so removed unless the National Assembly by a resolution, which has received an affirmation vote of majority of all elected Members, has so moved.
So you have explicitly how you remove the Clerk of the National Assembly. This is what is reflected in this clause. But it goes on; this clause now allows the President to suspend a Clerk of the National Assembly. So this is giving the President the power which the Constitution has not given the President. [Mrs. Lawrence: Where are you seeing that?]
“The Clerk of the National Assembly or the Deputy Clerk of the National Assembly shall be removed or suspended from office by the President.”
The Constitution has already given the President a power of removal, so you are now giving the President, by an inferior legislation, powers that the Constitution does not give him ...[Interruption] [Mrs. Lawrence: That is why we will make it right at the committee] I will deal with the select committee.
Then of course, the Clerk must take an oath - that is harmless and necessary, because we all take oaths. Then Sir, “Delegation of functions or powers” – as I said Article 57 establishes the office of Clerk of the National Assembly and Deputy Clerk.
3.40 p.m.
These are constitutional powers which are given to these two personnel which are not delegateable under the constitution, but this bill now seeks to allow them to delegate a constitutional power. You cannot delegate a power that the constitution resides in you and you alone. Where are you getting that power to delegate? This again violates the independence and autonomy that is resided in the Clerk of the National Assembly. You are allowing that high power, that high constitutional office to be delegated by an ordinary law when the Constitution never contemplated that.
Clause 14 of the bill allows for the delegation to be revoked but it does not say by whom. It says “Every delegation under section 13 of this act shall be revocable in writing at will”, by whom? It does not say by whom. You are giving an authority a power to delegate a power that he cannot delegate and then apparently you are given somebody – a phantom person – a power to revoke that and to revoke it at will. That again violates Article 57 of the Constitution.
Then clause 15 of the bill, which is almost the end of the bill, seeks to establish an Office of the Clerk of the National Assembly. After all the long recitation about Clerk and Deputy Clerk and Acting Clerk and all these weird position they are creating, now at clause 15, almost at the end of the bill, it establishes the office that it has been speaking about all of the time. The scheme, the simple order of it is wrong and in any event, as I said, this office is already established by article 57.
I already spoke about the responsibility of the Clerk to Your Honour that Article 17 has and I have already dealt with how that undermines the very independence which the bill seeks to confer upon the office holder.
Then we go from clause 18 to clause 27 and these clauses, I submit, are in direct violation of Article 171 of the constitution because the cumulative effect of these article or these clauses are that they confer a charge upon the Consolidated Fund without complying with the prescription outlined and required by Article 171 of the Constitution.
Sir, I have read your proposed ruling and I most humbly wish to disagree with it on this ground. Your Honour took the position that Your Honour has no power to stop the bill from going through but permit me to point Your Honour’s attention to Article 171:
“Subject to the provisions of this Constitution and of the rules of procedure of the National Assembly…”
Hence everything is subject to the Constitution. Article 8 says that the Constitution is the supreme law and anything that contradicts that supreme law violates the Constitution so Article 171 and everything that goes on in this Parliament is subject to the Constitution.
“…any member of the National Assembly may introduce any Bill or propose any motion for debate in, or may present any petition to, the Assembly and the same shall be debated and disposed of according to the rules of procedure of the National Assembly.”
Hence if a legislation, a bill, is violates Article 8 of the Constitution then it ought not to be proceeded with.
Mr. Speaker: Is the court not the proper institution to determine constitutionality or unconstitutionality?
Mr. Nandlall: If Your Honour is still in doubt…
Mr. Speaker: That is why the court has always sat to do just that and have struck down many laws that this Assembly had passed.
Mr. Nandlall: I do not dispute the court’s power to strike down after it has passed but that does not mean that the court cannot intervene before it is past but quite apart from that Article 171 (2) says:
“Except on the recommendation or with the consent of the Cabinet signified by a Minister, the Assembly shall not - [Hence the Assembly is prohibited from proceeding.]
(a) proceed upon any Bill (including any amendment to a Bill) which, in the opinion of the person presiding, [That is Your Honour] makes provision for any of the following purposes -
(i) for imposing or increasing any tax;
(ii) for imposing any charge upon the Consolidated Fund or on any other public fund of Guyana or for altering any such charge otherwise than by reducing it;”
Here there is a whole regime that is created. The cumulative effect will be a charge on the Consolidated Fund.
Mr. Speaker: Certainly you accept that there is already a charge so it is not as if this is creating a new charge. The Clerk gets paid, the Deputy Clerk gets paid. It is not as if this bill seeks to create a new charge which is unheard of.
Mr. Nandlall: Sir, the language is this: “for imposing any charge”. It says “or for altering any such charge otherwise than by reducing it.” Clearly, one has a power to reduce. If one attempts to increase that charge then one cannot attempt to proceed with the bill unless a Minister of the Government gives his consent. That is what the cumulative effects of these provisions are. Because you are seeking to add employment you are seeking to increase charges and wages and salaries which you are saying in the bill are going to be charged on public funds and the Constitution says that if you are to do so then you must proceed only with the consent of a Minister.
I am unable to persuade and convince my friends. The utterances that I am hearing are devoid of any reason. I have not made a single political remark. I prefaced all of my submissions on pure issues of law and all I can get on the other side is childish and infantile ranting.
For the reasons outlined we have advised the Hon. Member, the Chief Parliamentary Counsel detailed to the Hon. Member based upon the information I arrived at, that the bill is incapable of correction because we tried to correct it and therefore even if it goes to the Parliamentary Select Committee it is incapable of correction and that is the Government’s respectful position. I thank you. [Applause]
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