Standing Order
3084 22 Nov, 2012
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Mr. Speaker, on a Point of Order, Standing Order No. 26 dealing with Admissibility of motions says:
“In order that a motion may be admissible it shall satisfy the following conditions.”
And I wish to refer to condition (g):
“ it shall not relate to any matter which is under adjudication by a court of law.”
Sir, I have here notice of motion filed in the High Court numbered 69(m) of 2012, a motion Intituled in the Matter of the Constitution of the Republic of Guyana in the Matter of the Rules of the High Court, in the Matter of the Inherent Jurisdiction of the High Court. The Attorney General against David Granger in his capacity as Leader of the Opposition and Raphael Trotman in his capacity as Speaker of the National Assembly, Respondents, Jointly and Severally.
Mr. Speaker, the action itself, if I may be permitted with your kind leave to read the reliefs, it reads as follows:
“A declaration that motion moved in the National Assembly on the 25th day of July 2012 by Leader of the Opposition Brigadier Retired Mr. David Granger, MSS, MP, and duly passed on the 30th day of July, 2012 is unlawful, violative of the doctrine of separation of powers, unconstitutional, null, void and without any binding force or effect in so far as same purports to censure and express a no confidence in Minister Clement Rohee, MP.”
The second relief:
“A declaration that resolution No. 18, passed by the National Assembly on Monday, 30th of July, 2012, is unlawful, violative of the doctrine of separation of powers, unconstitutional, null, void and without any binding force or effect in so far as same purports to censure and express no confidence in the Minister of Home Affairs, Mr. Clement Rohee.”
Attached to the motion is an exhibit AG1. It is the motion which was passed by the National Assembly along with a certificate from the Clerk of the National Assembly as well as the Resolution which resulted from the motion.
I refer to the motion now which is before the House, the resolve clause. It reads as follows:
“That since the National Assembly by National Assembly Resolution No. 18/2012, the very resolution which is the subject of the court matter which is pending, has expressed no confidence in the performance of Hon. Clement Rohee MP, as Minister of Home Affairs that he be prevented from speaking in the National Assembly so long as he is purporting to carry out the functions of Minister of Home Affairs as published in the Official Gazette.”
The identical subject matter which is the subject of this motion that the Leader of the Opposition is embarking to speak upon is the identical motion which is the subject of legal challenge. I have the Resolution No. 18. The motion states the resolution that it expressly seeks is Resolution No. 18 of 2012. This motion seeks to prevent the Minister from speaking as a result of Resolution No. 18. And Resolution No. 18 is the subject of legal proceedings. Applying Standing Order 26(g), “it shall not relate to any matter which is under adjudication by a court of law”, this matter, which is the subject of the motion, I humbly submit, is clearly in adjudication by a court of law and, therefore, is prohibited by the Standing Orders. It is inadmissible; it cannot begin to proceed with the debate. That is my first objection.
My second objection is rooted in Article 146 of the Constitution. Your Honour would recall in Your Honour’s ruling you very carefully articulated, relying and citing the case of Sabaroche against the Attorney General of the Commonwealth of Dominica, dictum to the effect that the Parliament must always act in conformity with the Constitution, specifically in the Sabaroche case it was an attempt to prevent a member from speaking in the National Assembly. The judges of the OECS Court of Appeal were very, very clear and trenchant in their ruling. They say that the National Assembly has no authority in law under the Standing Orders to violate a person’s fundamental rights. Minister Rohee, as every other citizen of this country, is conferred, by virtue of Article 146 of the Constitution of the Republic of Guyana, the freedom of expression. I will read the article:
“(1) Except with his own consent, no person, shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinion without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.
(2) Noting contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision…”
Following are the exceptions where a citizen can lose his freedom of expression. It can only be done in the following circumstance: under the authority of a law. That is the first thing. We are not operating here under the authority of any law. We are operating here under Standing Orders most of which have been suspended in any event. It is trite law that Standing Orders do not have the force of law. So there is no person or this Assembly is not acting under the authority of any law. That, notwithstanding, I will still continue.
“(a) A law that makes provision that is reasonably required in the interest of defence, public safety, public order, public morality and public health.”
That clearly has no applicability.
“(b) That is reasonably required for the purpose of protecting the reputation, rights and freedoms of people”
Of course, here it is speaking about liable laws and so on, that has no application.
“(c) That imposes restriction upon public officers or public officers of any corporate body established on behalf of the public or on behalf of the Government of Guyana.”
That has no application.
“(d) That imposes restriction upon any person institution, body authority or political party from taking any action or advancing, disseminated or supporting any idea which will result in racial or ethnic division among the people of Guyana.”
That has no application.
It is my duty to advise this Assembly that should this Assembly proceed along the route which it is embarking upon the ineluctable consequence will be the violation of Article 146 of the Constitution, the violation of Minister Clement James Rohee’s fundamental right to express himself. More importantly, the creature of the Constitution and I see the motion itself which is before the House now cites several sections of the Constitution seeking to establish the sovereignty of Parliament, but at the beginning of every one of those constitutional provisions there are the words “subject to this Constitution.” I have said repeatedly that this Parliament is not above the Constitution. This Parliament was created by the Constitution and is a creature of the Constitution. It can only act within the parameters given to it by the Constitution. The Constitution does not authorise this Parliament to violate the fundamental rights of any citizen. If this Parliament is proceeding along that course, I am adverting this Parliament’s attention, as I am duty bound to do as Attorney General, of the consequences that will flow.
I thank you very much, Sir. [Applause]
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