WHAT THE CHIEF JUSTICE ACTUALLY SAID.


Three differing interpretations of the Chief Justice’s ruling in the case of the Attorney General v David Granger and Raphael Trotman have been given. Attorney at Law Basil Williams of APNU said that the Chief Justice upheld the decision of the Speaker by allowing Home Affairs Minister to speak as a Member of the National Assembly but not as Minister of Home Affairs. The Attorney General said that the “gag” order made against Minister Rohee by the Speaker has been removed. The Speaker said that he is appealing the decision because he requires clarification but that in any event he is not bound by the Chief Justice’s ruling. All of these distinguished gentlemen cannot be right. So what really did the Chief Justice say?

Before answering the question some background is necessary.

On July 30, 2012, the Assembly passed a resolution, No. 18 of 2012, expressing no confidence in the Minister of Home Affairs and calling for his dismissal. Following upon this resolution the Leader of the Opposition tabled a motion on November 22, 2012, which proposed that Minister Rohee: “……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 effect of what Mr. Granger was asking was that Minister Rohee should not speak at all as long as he holds the position of Home Affairs Minister.

The Speaker ruled that the  (a) the motion be sent to the Committee of Privileges and (b) Minister Rohee “be prohibited from speaking or, not recognizing Minister of Home Affairs, Clement James Rohee MP for the purpose of presenting any bills, motions or making other presentations to the House.”

The Speaker later explained his ruling to mean that Minister Rohee cannot speak or present bills or motions in his capacity as Minister of Home Affairs but he can speak in his capacity as a Member.

The Attorney General brought the case to declare the Speaker’s ruling unlawful and unconstitutional and to order that it be set aside.

The Chief Justice dealt with several issues which are not all necessary to be examined because they do not all relate to the issue of Minister Rohee’s right to speak. It is only this portion of the Chief Justice’s ruling which we are seeking to clarify.

The Chief Justice made two important conclusions, namely, that Minister Rohee’s right to speak in the National Assembly derives from his membership of that body and not from his position as Minister of Home Affairs and that, therefore, it is irrelevant for the purpose of the case that Mr. Rohee holds the portfolio of Minister of Home Affairs. He said: “If Mr. Rohee’s name was on a successful list of candidates and his name was extracted from that list of candidates to hold a seat in the National Assembly on behalf of all members of that list but he was not assigned a ministerial portfolio, his right or privilege to speak in the National Assembly would not have diminished one iota by his non-tenure of a ministerial portfolio. Therefore, the prohibition must necessarily relate to Mr. Rohee only as a member of the National Assembly and not as Minister of Home Affairs…….It is therefore irrelevant for the purpose of this case that Mr. Rohee holds the portfolio of Minister of Home Affairs.”

Two shorter passages confirm the view of the Chief Justice which is outlined above. In the latter the Chief Justice said: “The legal truth is that Mr. Rohee can speak in the National Assembly only as a member of the National Assembly and not as Minister of Home Affairs.”

Having concluded with clarity that Minister Rohee does not have separate rights of speaking as a Member and as a Minister, but a single right as a Member, the Chief Justice then proceeds to pronounce on the right. He said: “It is indeed difficult to see how, in the face of the doctrine of separation of powers, the Speaker can prohibit a member (particularly an elected member) from speaking or making a presentation in that Assembly on account of the absence of confidence of the majority of the members of the Assembly in that person qua an executive Minister when he sits in the Assembly not qua Minister of the Government but qua member of the National Assembly.” Several other passages confirm this position.

The Speaker expressed the view that the Chief Justice’s ruling is not binding on the Parliament. While it is true that the Chief Justice that: “It is no part of the court’s function to give directions to the Speaker of the National Assembly as to the future conduct of the Assembly’s affairs,” emphasizing that the Chief Justice was talking about “future conduct,” he also said: “In such an exceptional state of affairs in the National Assembly, the need for the court to intervene in the processes of the National Assembly does appear to arise in protection of his constitutional right as an elected member of the National Assembly.”

While the Chief Justice was of the view that Mr. Rohee’s right to represent his electors in the National Assembly is not constitutionally enforceable, he clearly stated that “it behoves the Speaker and indeed the National Assembly as a whole to respect not only the finding of the court for reason of its finality but also the constitutional right to be represented by him in the National Assembly.”

Many peculiar situations are arising since the last general elections. Conventions are ignored. New ones are announced which never existed anywhere in Guyana or the world at large. Roles are reversed. Now, suddenly, the Parliament/Speaker are not bound by court orders.

Who would be able to complain if the executive takes the same position?

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3 Comments

  1. Thanks for the clarification on this! The essence of what had been said was quite muddled through the media, and thus trying to appreciate exactly what CJ Chang was trying to convey was somewhat beyond a layman like myself.

    While the constitutional protection of the right of an elected parliamentary member to speak is obviously very important towards the notion of upholding proper order and governance in a democracy, I notice somewhat of a contradiction which I hope you will clarify. Forgive me in advance if this comes across as being confusing!

    On the one hand, you are saying that Parliament should abide by the court’s constitutional recommendations as it pertains to upholding the right of an elected member to speak, and you argue this because it is important to uphold the essence of democracy. You acknowledge that it isn’t within the purview of the Court to interfere in this due to the separation of powers, and I thus gather that we should accept CJ Chang’s commentary based on its usefulness in adding meaning to the plain law (despite it not technically having merit in the Parliamentary forum). On the other hand, you are saying that the opposition’s vote of no confidence in a government minister should not be upheld because members of the national assembly speak qua being members of the national assembly, regardless of their being a minister or a merchant. You also argue that this rule is at play, and thus prevents the opposition from pursuing their motion because it is wrongly grounded. The contradiction that I think I notice arises in advocating for accepting the addition of ‘meaning’ to the strict letter of the law as it pertains to the CJ’s ruling while rejecting the clear ‘meaning’ of the opposition to gag a particular person (Minister Rohee) from speaking based on the fact that he is an elected member (thus being seemingly deliberately blind to the fact that he’s the Minister of Home Affairs).

    I think trying to argue that Minister Rohee’s occupation of the office of Home Affairs Minister does not play into his role in the National assembly is a bit far fetched – he brings forward parliamentary business related to Home Affairs precisely because he is Home Affairs minister. There are clear problems with allowing the opposition to ‘get away’ with their gag aspirations, but I don’t quite follow the logic of the argument. It’s hard for me to rationalize ‘Clement James Rohee’ and ‘present Minister of Home Affairs’ as mutually exclusive.

    If I may add – the request to gag Minister Rohee is, in my opinion, totally unacceptable. Refusing to deal with a sitting Minister on the basis of several weak complaints shows the opposition’s pettiness, and also disturbs the work of the nation. If they have a legitimate problem, though, there must be some form of redress that will not detract so much from the affairs of the nation. Can you possibly clarify any such avenues?

    Again, I apologize for the overall confused tone of this message!

  2. Thank you for your response. The CJ said that Minister Rohee had a right to speak in Parliament and that the Speaker was wrong to prevent him form doing so. He also said that while he can say what the law is but cannot order the Speaker to allow Rohee to speak. He further said that having said what the law is, he expects that the Speaker will follow it.

    The Speaker said that he is not bound by the ruling of the CJ. This is a most astonishing and frightening development.

  3. Ex-Speaker of House, Ralph RamKarran, have added another level of confusion to the already existing dilema in the currrent 10th Parliament. First, in a Parliamentary System of Governance there is no separation of powers. The Executive that is referred to here seems to suggest that the President, the Cabinet, and the Public Servants, is the Executive, but no. The President who is the Head of State; the Prime Minister who should be the Head of the Cabinet; the Cabinet; the Speaker who is the Head of Parliament; and the Parliament; makes up the Executive.

    These are the elected politicians who are chosen to form policy for the State, where they are all Members of Parliament (MP) working for the Head of State. When Parliament is in session, all MPs have immunity from the law/courts within limits, and is subject to the order of the Speaker who is bound by the Rules of Parliament and the Constitution of Guyana.

    Now, this claim that a minister has some separation from a MP is disorienting because the Minister is an MP just as every other MP, there is no higher or lower MP. The MPs who are chosen to administrate the government is the MPs who must answer questions concerning the affairs of the State, that is why they sit up-front, and the other MPs of the same Party, the Back Benchers, are in support of their respective Party. But this is only because of convention, a long practice known as party discipline, where party members support their part members. Nothing here diminishes the authority of any MP, that are all equal in status, even the Prime Minister is equal in staus to a Back Bencher.

    It is also another convention that every MP serves in the Parliament with the confidence of the majority in Parliament (referred to as the House). It is for this reason that a government would fall due to the Prime Minister, who is an MP, loses the confidence of the Parliament. Therefore, in the same spirit, any other MP who loses the confidence of the Parliament should consider upholding this convention. This is what another convention is about, its called Ministerial Responsibility, where if the majority of MPs do not hold the Confidence in a MP who holds the office of a Minister. So, this is the adopted principle and convention of the British Common Law System of Governence thet is in dispute here.

    The Chief Justice Acting is well aware that the Right to Speak is not absolute, he is aware that in every Institution of Governance citizens and officials are subjects to the rules legislated by the state, where power is granted to officials of the state. The Chief Justice is one such office; an office which determines the right to speak. In a Court, everyone is subject to the rule of the judge, and their right to speak is controlled by the judge. It is this same Rule of Law that determines that the Speaker has the power to control the Right to Speak in the Parliament.

    Therefore, Mr Ramkarran, please do not add another level of confusion to the already distorted conversation being dispelled onto the Guyanese society.

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