Dear Editor,
I refer to Mr. Ganesh Mahipaul’s letter in SN of 27 November.[1] I am challenged to recall in which part of the jurisprudential stratosphere it exists that a Standing Order can supersede the provisions of a Constitution which is often and, certainly in the case of Guyana, the Supreme Law of the land: Article 8 of our Constitution is entitled “Supremacy of Constitution”.
Moreover, there is nothing to be alarmed about when the Standing Order does not contradict what is stated in the Constitution. To be clear, to take part in proceedings of the National Assembly, you need to take the Oath of Office; for the election of the LOO, it is not necessary, simply because the meeting of non-governmental members of the Assembly to elect the LOO under Article 184(1) does not form part of the “proceedings” of the National Assembly. “Proceedings” of the National Assembly take place when members from both governmental and non-governmental sides of the House are seated in the place appointed to be Parliament. Non-governmental members of the National Assembly sitting alone for a meeting to elect the LOO as per Article 184(1) does not constitute “proceedings” of Parliament.
Thus non-governmental members of the Assembly are not required to take an Oath in the meeting to elect the LOO; in fact, that meeting can be held at any time, day or night, before the first sitting of the Assembly; for this latter meeting (sitting) however, the taking of the Oath of Office is required (btw does the LOO take the Oath “as LOO” or as a member of the Assembly?).
No parliamentary business can occur before Members are sworn in. The Speaker must be elected first, before exercising any authority – that is, authority in the new, 13th Parliament. Fortunately, because the Speaker of the 12th Parliament remains the Speaker until the first sitting of the new (13th) Parliament (Article 157 and 56 of the Constitution), and because the meeting of non-governmental members of the Assembly to elect the LOO is not part of the “parliamentary business” of that 13th sitting, for which taking the Oath of office is required, the meeting to elect the LOO can be held at any time prior to the first sitting of the Assembly. This would be done under the continuing authority of the Speaker of the 12th Parliament who ‘shall vacate the office of Speaker…whenever the Assembly first meets after a dissolution of Parliament’. Since the promulgation of the 1980 Constitution, the LOO, unlike the Speaker, no longer enjoys the quality of survivorship and so cannot straddle two sessions of the Parliament (whatever practice may have continued within the administration of Guyana’s Parliament is a matter to be separately determined).
Those non-governmental members of the Assembly who have to elect the LOO are deemed to be elected from the time the CEO of GECOM announces their election and he so certifies them (see section 98 and 100 of the Representation of the People Act): I am reliably informed that all members of the opposition bench – WIN, APNU, FGM – were so certified as elected members long before the first sitting of the 13th Parliament on 3 November. In fact, their cheques should very soon, very shortly, be in the mail, reflecting salary and emoluments from the date of their certification by the CEO of GECOM, not the date when they took the Oath of office before the Speaker on 3 November.
Editor, old habits die hard. Because Messrs. Desmond Hoyte and Robert Corbin respectively were LOO’s for 23 years, the (re)election of the LOO was really a formality – in other words, they would simply resume the post of LOO at the first sitting of a new session of Parliament. It is only when a change of government occurred in 2015 – or as I keep stressing, in the fundamentally changed circumstances now, of a third party displacing APNU as the main opposition party – that these unaccustomed circumstances have arisen. Thankfully, the draftsman foresaw this and so provided for them accordingly in the Constitution. That the circumstances are unusual does not make them in some way wrong, or illegal.
Respectfully, it does not follow “that the election of the Leader of the Opposition is part of the proceedings of the House…” (there is a reason why the election of the LOO was not on the Order Paper for the first sitting on 3 November). Further, I have elected (couldn’t resist the pun!) not to debate any longer this nonsense that “Mr. Aubrey Norton was Opposition Leader up until November 3”.
I thank Mr. Mahipaul for his missive, albeit its contents are grounded neither in constitutional law nor parliamentary practice; I would gladly sit with him to discuss further. However, may I suggest, as a purely preliminary matter, that he familiarises himself with the relevant provisions of the Constitution of Guyana (not just Article 184) and the ROPA…and, oh yes, perhaps he could read up on Erskine May’s Parliamentary Practice (25th Ed.) that his Parliamentary Leader Dr. Terrence Campbell recently acquired.