Dear Editor,
Ms. Gail Teixeira’s letter published in your issue of September 21 responding to Mr. Raphael Trotman’s letter published on September 14 attracted my attention concerning the fact that some Bills passed by the National Assembly and presented to His Excellency, the President, for his assent did not receive the President’s assent before the National Assembly was prorogued and, consequently, did not become law resulting in the process for the enactment of the legislation having to be repeated if the Government desires to have the legislation enacted.
I had prepared this letter but had not dispatched it to your newspaper as yet and, in the meantime, the comments by “Legal Analyst” were published in SN 28th September, I wish, nevertheless, to add the following comments.
The Constitution in Article 170 requires the President, if he withholds his assent to a Bill passed by the National Assembly, to refer the legislative measure to His Honour, the Speaker of the National Assembly within twenty-one days after it was presented to him for his assent, giving reasons for withholding his assent. Ms. Teixeira’s letter does not indicate whether or not the President complied with the constitutional requirement to give reasons to the Speaker for withholding his assent. However, Mr. Trotman did assert in his letter that the President did not give any reason for withholding his assent. Article 170 of the Constitution stipulates that, if the Assembly at a subsequent meeting passes the Bill by a two-thirds majority of all the elected members of the Assembly, the President must assent to it within ninety days of its presentation to him for his assent.
I thought it necessary, in the circumstances, for the benefit of your readers, to refer to the abovementioned constitutional requirements.
Ms. Teixeira asserts that there is no provision of the Constitution which requires the President to assent to a Bill within a specified time. This is undisputed but, in my opinion, if the President did not refer the Bill to the National Assembly through the Speaker as required by the Constitution, the requisite administrative arrangements should have been made for His Excellency’s assent to be given before the National Assembly was prorogued in order to avoid the unfortunate lapse of the legislation and, consequently, the necessity for the process for its passage and enactment to be restarted, if this is so desired by the Government. It is to be noted that Article 79 (2) of the 1966 (Independence) Constitution provided for the Governor-General, when a Bill was presented for his assent, either to signify that he assents to the Bill or that he withholds his assent and such Bills could not become law without the Governor-General’s assent. Article 170 of the Constitution promulgated in 1980 went further than the previous constitutional provision and required the President, where his assent to a Bill is withheld, to 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 for withholding his assent. Special conditions are, however, prescribed if the returned Bill is to be debated in and passed by the National Assembly.
It is my opinion that the framers of Article 170 of the Constitution must have intended that the President would expeditiously assent to a Bill presented to him for his assent if he did not exercise the power to refer it to the Speaker of the National Assembly with his reasons for the referral, but always before the expiration of the prescribed period if he has no reason to refer it to the Speaker. I take this opportunity to mention that it is believed in some circles that the President enjoys residual powers to deal with situations believed to be in the nature of residual prerogative powers. The President has no residual powers additional to those powers conferred on him by the Constitution or any other law or instrument having the force of law in Guyana. Not even Parliament consisting of the President and the National Assembly is supreme as laws enacted by Parliament consisting of the President and the National Assembly can be vitiated by the courts as being in violation of, or inconsistent with, the Constitution which is declared by the Constitution itself, in Article 8, to be the Supreme law of Guyana. Constitutional lawyers, therefore, refer to constitutions like ours as providing for constitutional supremacy and not parliamentary supremacy. I should add that, in former times, when a prorogation or dissolution of the legislative body was imminent, it was the practice for there to be collaboration among the Clerk of the legislative body, the responsible official in the secretariat of the Head of State, the Attorney-General or the Solicitor General (in the absence of the Attorney-General) and the Chief Parliamentary Counsel, in order to facilitate and ensure the assent of Bills by the Head of State and to avoid the situation which occurred with respect to the Eighth Parliament of Guyana.
Yours faithfully,
Bryn Pollard
