Dear Editor,
I refer to your story in SN of 22 November calling on the Hon. Speaker to hold elections for the Opposition Leader (LOO) and quoting Mr. Ganesh Mahipaul, a “veteran” APNU MP of the 12th Parliament thus: ‘You cannot be elected Leader of the Opposition unless you take the oath of office as a Member of Parliament….’ Respectfully, I beg to differ for the following reasons:
Whether you are reading a text book, a novel, or a Constitution for that matter, I believe that we can all agree that whatever is stated in publications such as these is logically guided by and dependent on what is earlier stated in the particular text – otherwise the author could be accused of “jumbled-up thinking”. It is particularly the case with a Constitution that subsequent provisions often have to be cross referenced with what is previously stated in the text, to get a full and complete understanding of what the author intended.
Regarding the specific issue of the LOO, the relevant provision of the Guyana Constitution is Article 184 and it must similarly be read in the logical order in which it is drafted, and whatever is stated must be guided by and dependent on what is earlier stated in the text. Article 184 first provides in paragraph (1) for the LOO to be elected ‘from among the non-governmental members of the National Assembly at a meeting…’. Thereafter, Article 184(2) gives instances of how the office of LOO ‘shall become vacant’; paragraph (b) of Article 184(2) provides that such vacancy can arise if ‘he or she is not a member of the Assembly when the Assembly first meets after the dissolution of Parliament – it will be recalled that the dissolution of the 12th session of Parliament took place on 3 July and the Assembly first met after that dissolution, for the 13th session (the new Parliament) on 3 November.
I had previously explained that the ‘meeting’ of non-governmental members of the National Assembly to elect the LOO under Article 184(1) is separate and distinct from the occasion ‘when the Assembly first meets after the dissolution of Parliament’, as referred to in Article 184(2)(b): only opposition MPs can attend the former ‘meeting’, while all MPs, governmental and non-governmental, attend when the Assembly ‘first meets’, as was the case on 3 November, some three weeks ago.
This therefore begs the question, logically, how could you determine whether or not the LOO is a member of the Assembly ‘when the Assembly first [met] after the dissolution of Parliament’ per Article 184(2)(b), (that is, on 3 November), if the meeting of non-governmental members of the National Assembly to elect the LOO was not first convened by the Speaker, per Article 184 (1), in keeping with the logical sequence of events as set out in the totality of Article 184? This sequencing would avoid the conclusion that the drafter of the Constitution was afflicted by a bout of “jumbled-up thinking”.
It is submitted that the status of MPs is determined by their names being extracted from the various party lists and formally submitted to Parliament. As provided in section 98 the Representation of the People Act (ROPA), which is entitled “Membership of National Assembly”, once seats have ‘…been allocated to any list of candidates’, and the Representative of the List has extracted ‘as many names…without their number exceeding the number of seats allocated to that list…the Chief Election Officer (CEO) shall declare such names…to be the names of candidates on such list who have been elected’.
In other words, you are already elected as a member of the National Assembly once the CEO so declares; for the avoidance of doubt, the results are published and under section 100 of the ROPA, the Commission furnishes ‘persons who have become members of the National Assembly with a certificate that he has been so elected. I hope, Mr. Mahipaul has been duly certified as such, as this information was in the public domain about a week after the September 1 elections.
Thus from the time that names are extracted from the list of candidates that took part in the elections and said names are publicly declared, Gazetted and certified by the Commission, those persons ‘have [already] been elected’. Those names of elected members of the Assembly are formally transmitted by GECOM to the Parliament Office; thus every Tom, Dick, Harry, Iqbal, Alicia, Pritima and Ganesh, as well as the Speaker, would thereby have all the information needed to convene the meeting of ‘non-governmental members of the National Assembly’ to elect a new LOO under Article 184(1). Ideally, that meeting would be held at a time before ‘the Assembly first meets after the dissolution of Parliament’. So, Mr. Mahipaul, the swearing to the Oath of Office by members at the first sitting of a new Parliament is only the formal confirmation that these MPs, already duly elected and certified weeks prior by the CEO, can thereafter be seated in the Parliament Chamber as the people’s representatives.
In fact this prior convening of the meeting of non-governmental members under Article 184(1) to elect the LOO, if held at a time soonest after the names of the non-governmental members are known to the Speaker and well ahead of the time when ‘the Assembly first meets after the dissolution of Parliament’ as referred to in Article 184(2)(b), would, in my estimation, give full expression to the intendment of the draftsman. It is submitted that the draftsman foresaw that in the period between these two meetings, the holder of the office of LOO – having already been ‘elected by and from among the non-governmental members of the National Assembly’ – could resign, be struck by ill health, be adjudged to be of unsound mind, or even recalled by the Representative of his party’s List and replaced by another candidate as a non-governmental member of the Assembly.
In light of the foregoing and given Mr. Mahipaul’s relative parliamentary experience, I am surprised at his contention regarding the significance of the swearing to the Oath of Office of duly elected MPs, to the effect that ‘You cannot be elected Leader of the Opposition unless you take the oath of office as a Member of Parliament….’ In my humble estimation, his statement betrays a fundamental misunderstanding of the provisions of the Constitution and the ROPA, resulting in him “putting the horse behind the cart!”.
As I have stated previously, the arrival of a third party on the scene in Guyana has brought about a seismic shift in the political landscape, made all the more disruptive and inconvenient by that party’s displacement of APNU as the main opposition party. I respectfully believe that it is time for all concerned to get out of their accustomed “two-party comfort zones” and respect the letter of the law and the intendment of the draftsman as set out in Article 184(1) of the Constitution, the sequencing that follows logically from the totality of Article 184, and the relevant provisions of the ROPA. The meeting of non-governmental members of the National Assembly should be held post-haste, in keeping with our adherence to Commonwealth parliamentary practice, without the need for the threat of, or resort to the courts.