ROHEE’S RIGHT TO SPEAK.


Had I been the Speaker, this is the ruling I would have given on the motion tabled in the National Assembly to prevent Minister Clement Rohee from speaking. It would have avoided the costly litigation just concluded before the Chief Justice in which he ruled that Rohee has the right to speak as a member of the National Assembly.

“On July 30, 2012, the Assembly passed a resolution, No. 18 of 2012, which stated in part “…..that the National Assembly censures and expresses ‘no confidence’ in the Minister of Home Affairs, Hon. Clement Rohee, M.P., over his inability to discharge his responsibility for public security and calls for the immediate revocation of his appointment as a Minister of the Government and for his dismissal from office.”

On September 13, 2012, the Attorney General filed a Motion in the High Court challenging the constitutionality of the resolution No. 18 of 2012.

I was asked to disallow Hon. Member Clement Rohee from addressing the House in his capacity as Minister of Home Affairs consequent upon the resolution No. 18 of 2012. On November 8, 2012, I ruled that “in the circumstances, and having regard to the foregoing, the Speaker of the National Assembly I rule, has no power to restrict or deny the right of the member, the Hon. Clement J. Rohee, from speaking…..”

A motion has now been tabled, moved by Hon. Member David Granger and seconded by Hon. Member Khemraj Ramjattan, resolving “that since the National Assembly, by National Assembly Resolution No. 18 of 2012, has expressed no confidence in the performance of the Honourable Clement Rohee as Minister of Home Affairs, that he be prevented from speaking in the National Assembly as long as he is purporting to carry out the functions of Minister of Home Affairs as published in the Official Gazette.”

Hon. Clement Rohee, in addition to being the Minister of Home Affairs, is also a lawfully elected member of the National Assembly which is a constitutional office. The following provisions of the Constitution are relevant.

65(1) Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Guyana.

171(1) Subject to the provisions of this Constitution and of the rules of procedure of the National Assembly, any member of the 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 Assembly.

These provisions define the role of Parliament and the powers of members. One such power of members includes the power to present a motion or bill for debate and, impliedly, the right to engage in debate. In other words, a member of the Assembly has a constitutionally protected right to speak in the Assembly.

Legal recognition of the right to speak in Parliament was first won in 1689 in England when it was enshrined in article 9 of the Bill of Rights. Since then it has been recognised, expressly or impliedly, by all Westminster Parliaments and most likely by all Parliaments.

The modern expression of that right can best be found in the First Report of the Special Committee on the Rights and Immunities of Members of April 29, 1977, of the Canadian House of Commons (House of Commons Procedure and Practice, edited by Marleau and Montpetit, published by Cheneliere/McGraw-Hill, 2000) which described it as: “….a fundamental right without which they [members] would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.”

In our Standing Orders, in accordance with these well established principles, the Speaker does not have the power to prevent a member form speaking. S.O. 38(1) permits a member desiring to speak to “rise in his or her place.” While a member cannot speak unless called upon to do so by the Speaker, he or she “shall call upon the Member who first catches his or her eyes.”

The Speaker has neither the power nor the authority to prevent a lawfully elected member of the National Assembly from speaking because of a resolution of no confidence in that member or for any other reason. A member is elected by the electorate to represent its interests. The manner in which those interests are represented is provided for in article 171(1) of the Constitution, quoted above, which empowers a member to introduce a bill or propose a motion for debate and which shall be debated and disposed of in accordance with the rules of the Assembly.

It follows from the above that a motion seeking to disallow a member from speaking for any reason would, if passed in the Assembly, violate the Constitution and the member’s constitutional rights. For this reason the National Assembly has no power to entertain it and I cannot allow it.

As I mentioned above, the Attorney General in Action No. 69/CM of 2012 Demerara seeks from the High Court orders to the effect that Resolution No. 18 of 2012 of the National Assembly violates the Constitution of Guyana. The respondents to this action are Hon Member David Granger, Leader of the Opposition and myself.

Standing Order 26 states that: “In order that a motion may be admissible, it shall satisfy the following conditions, namely: ……..(g) It shall not relate to any matter which is under adjudication by a court of Law.”

The Motion which has been tabled invokes the same resolution, no. 18 of 2012, which is the subject matter of the court proceedings, as the basis  seeking from the Assembly a resolution disallowing the Hon Member Clement Rohee from speaking.

Standing Order 26(g) has been interpreted on many occasions in many jurisdictions. All that is needed for me to say here is that it has been rigidly applied.

Having regard to the existence of the court proceedings the motion violates the sub judice rule and is not admissible. “

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