By Legal Analyst
In her letter in Stabroek News of September 22, 2008, which responded to allegations of unconstitutional delay by the President in assenting to certain parliamentary bills, Minister Gail Teixeira makes, and repeats, an interesting observation.
The observation by Ms Teixeira is: “There is no provision I can find in the constitution which states explicitly the time period for the President to assent.” And later in her letter: “I repeat that there is also no definite time within which the President must assent; the constitution guides on this but is not definitive.” She does not indicate how in her opinion the constitution “guides” the President in this respect.
The usefulness of Ms Teixeira’s letter goes beyond her considerable experience in government and parliament and her right as a citizen to speak. As the official Advisor to the President on Governance, she is a senior member of the Presidential Secretariat, and therefore her comments may be taken as reflecting a view held by the President and his advisors.
Article 170 of the Constitution of Guyana has a number of sub-paragraphs (six in all). Sub-paragraphs (2) and (3) state:
“(2) When a Bill is presented to the President for assent, he shall signify that he assents or that he withholds assent.”
(3) Where the President withholds his assent to a Bill, he shall return it to the Speaker within twenty-one days of the date when it was presented to him for assent with a message stating the reasons why he has withheld the assent.”
The reader will note that on its face, Ms Teixeira has a point. For whilst Article 170 fixes 21 days for the President to signify that he withholds assent, it does not explicitly state the same or any other specific time for him to signify that he has given his assent. It would have been easy for the constitution to state in 170 (2) that: “he shall signify that he assents or that he withholds assent within 21 days of (presentation of the Bill).” Instead the 21 days provision is placed in the next sub-article dealing with the procedure for withholding consent. Indeed, sub-paragraph (5) of Article 170 explicitly provides that, where the President returns a bill to the Speaker under sub-paragraph (3) and the National Assembly, by the required special majority, resolves that the bill be again presented for his assent (notwithstanding his objection), “the Bill shall be so presented and the President shall assent to it within ninety (90) days of its presentation.” (Our emphasis).
Why does the constitution provide a specific period of time for the President to assent when a bill is duly returned to him by a parliament that has overridden his objections to it, but does not do so in respect of his initial assent?
Before giving any opinion on this question (and it can only be an opinion, as only a court – ultimately the Caribbean Court of Justice – can rule on this issue), let us look at a few ‘veto’ provisions in other constitutions.
The US constitution (Article 1 section 7) provides:
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, It shall become a Law.”
“If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
No messing about there! The last provision is clearly intended to prevent presidential dilatoriness, although the weapon of delay was not entirely unavailable. If a bill was received at the end of a legislative session when the President could not return it to the Congress he could prevent its enactment by simply withholding his signature. This was called a ‘pocket veto.’ He simply put the bill in his pocket (Amar America’s Constitution – a Biography page 558 note 17 – a marvellous book, by the way).
The US president is elected separately from members of Congress, as we all know in the year of Obama v McCain. It is thus possible to have a President of one party and a Congress dominated by another. His veto power is a substantial weapon in his hands, and it is not limited to constitutional objections, although it seems to have been first used by George Washington for this purpose.
On the other hand, the South African constitution of 1996 provides that:
“79 (1): The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.”
“79(4): If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill; if not, the President must either —
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its constitutionality.”
“79(5): If the Constitutional Court decides that the Bill is constitutional, the President must assent to and sign it.”
The South African constitution in this respect does not seem to impose a time frame, unlike the American provision referred to above which provides 10 days (except Sundays) after presentation for the President to return a bill, after which it automatically becomes Law.
In England the Queen is not an executive president. She has no explicit veto powers, at least in modern times. Francis Bennion, a leading authority on statutory interpretation states:
“It is the duty of the Clerk of the Crown, in consultation with the Government, to procure the signifying of the royal assent at the earliest opportunity after a Bill becomes ready for assent… There is no power to withhold a Bill from assent, whether on the instructions of the Government or anyone else. Nor, under the modern constitutional convention, may the Queen refuse assent. The last time assent was refused was by Queen Anne in 1707.” (Bennion 5th edition, 218). (Our emphasis).
But interestingly, Bennion adds:
“These are the rules, but they are to some extent misleading. One of the strengths of Britain’s unwritten constitution is the reserve power it contains. In a near-revolutionary situation the occasion might still arise for the withholding of royal assent, if only by way of delaying tactics. This might be done on the advice of Ministers, or by the Monarch of his or her own motion.”
As regards the constitution of India, Article 111 provides that:
“When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom:
Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom.”
Note the exception for money bills.
Shukla in his authoritative text on the constitution of India (10th edition) comments:
“It may be noted here that the Queen in England has the legal right to veto a Bill, but the right has not been exercised since the reign of Queen Anne. It may be said to have fallen into disuse as a consequence of ministerial responsibility. Veto could only be exercised on ministerial advice and no government would wish to veto Bills for which it was responsible or one for the passage of which it had afforded facilities through Parliament. [Our emphasis].
“In 1986 President Zail Singh took a course not clearly covered under this Article when instead of giving or withholding his assent or returning it to Parliament for reconsideration, he sent the Post Office (Amendment) Bill, 1986 to the Cabinet for its reconsideration.”
The Americans explicitly provided against presidential delay. The free South Africans limited the presidential power of referral to constitutional objection, and in an independent India a president (whose powers are more akin to a constitutional monarch) may refer back intended legislation with his recommendations, but has no veto requiring a special majority of parliament to override it. And in England, being dragged by the rest of western Europe into the world of written constitutions, history has reduced the absolute authority of a monarch to the mere possibility of royal procrastination in exceptional circumstances.
In colonial days Article 74 (3) of our 1961 constitution provides that when a bill was presented to the governor for assent he shall declare that “he assents or refuses assent thereto or that he reserves the Bill for the signification of Her Majesty’s pleasure.” The colonial era therefore, provided the governor with a third option of “reserving” a bill.
The 1953 constitution, after the PPP majority in parliament was negated by British military intervention and constitutional suspension, simply gave the governor the old monarchial power subject to “Her Majesty’s pleasure.” He could even override (section 70) the State Council (the cabinet) and neither chamber of the then House of Assembly could consider a bill affecting the public revenue without the recommendation or consent of the governor.
Guyana’s first independence constitution (1966) it seems only provided that (Article 79 (2)): “When a Bill is presented to the President for assent he shall signify that he assents or that he withholds assent”; and “a Bill shall not become law unless it has been duly passed and assented to in accordance with this constitution.” Presumably, as the then non-executive president acted on the advice of the cabinet, the comment made by Shukla in relation to the Constitution of India as regards the veto power of the Queen would apply.
These examples indicate that the constitutional exercise of a presidential veto in common law countries varies according to both the particular constitutional provisions in question and the political characteristics of, and relationship between, the institutions which exercise state power.
The Concise Oxford Dictionary defines ‘withhold’ as “refrain from putting in action; refuse to grant… arch. for hold, not taking action.” In the light of such a definition, if we read sub-articles (2) and (3) of Article 170 together, a failure to assent within 21 days may be a withholding of assent. If so, the failure to refer the bill back to parliament with a message stating his reasons would be a breach of Article 170 (3) by the President.
To put it another way; does our republican constitution envisage a president sitting for (say) 57 days on a bill presented to him by parliament (or putting it in his pocket) and neither signifying his assent to it or returning it to parliament with his reasons for not doing so? In other words, only choosing to indicate his assent if and when he feels like it, without having to give any reason for the delay?
Does it permit the existence of a ‘residual power’ in the president to do neither – a kind of royal prerogative, originating in the days of absolute monarchy?
Perhaps Justice Bhagwati’s words may be relevant in answering this question: “Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law.” (Royappa v State of TN: 1974).
Ms Teixeira says in her letter that the constitution “guides” us on the question of the time provided for the President’s assent. She is the official advisor to the President on governance, which is the subject we are speaking of. In that high capacity she can take the legal advice of the Attorney General or any other legal luminary she may choose to consult. Perhaps, after further consideration, she may wish to enlighten our readers on the nature of the guidance she says the constitution gives us on this subject.
We have been dealing here with the interpretation of the constitution in the light of other models. But perhaps the real issue, the bedrock of the problem, is not the constitution itself, but our political culture.
In this context the real question may be, why is the President unable to assent “at the earliest opportunity” bills presented to him by a parliament controlled by his party, which bills have been laid in that parliament by a cabinet appointed by and presided over by him, after (presumably) due consideration and approval. A supplementary appropriation bill for billions of dollars authorizing government expenditure for the rest of the year awaits presidential assent 56 days after its passage. Was it presented extremely late by parliament? Was the President too busy to signify his assent for 56 days? If the bill had been vetted by the parliamentary legal counsel and cabinet, was there still a need to search for errors?
Ms Teixeira in her letter gives the dates when each bill referred to by Mr Trotman was passed in the National Assembly and the date it was assented to by the President. She does not give the date each bill was presented by parliament for the President’s assent. On the face of her letter it is therefore not possible to ascertain for what length of time each bill was officially on the President’s desk for his assent.
This is not a trivial matter. We believe that the details should be ascertained and consideration given to a meeting between the representatives of parliament and the President on the matter of the timely presentation of and assent to bills.
The public interest is involved. We do not want, by omission or commission, to return to the days of “her (his) Majesty’s pleasure.”
