Dear Editor,
The motion before the High Court contending that Messrs Winston Felix and Keith Scott are not lawful members of the National Assembly and therefore cannot be appointed “technocrat ministers” says that the plain language and intention of Articles 60, 103, 105, 160 and 232 of the constitution are clear enough to resolve the matter. We are being told by lawyers that understanding the articles is an exercise in English comprehension, without reference to legal precedents and all the other obscure thinking that lawyers do that separate them from laymen. This layman decided to have a look to see what his country’s constitution says about the legality of Messrs Felix and Scott as technocrat ministers, by which means they have become members of the National Assembly.
The contention in the motion seems simple enough. It argues that these two gentlemen cannot be ministers because they are on a list of candidates, which fact automatically makes them elected members of the National Assembly. And technocrat ministers cannot already be elected members but must come from outside the list. If this contention should prove correct, it may be good news for many Guyanese who are not on the list of a winning party. They can become ministers, but if my comprehension of the relevant articles is right they should not entertain such hope.
Article 103 (2) of the constitution makes clear that Ministers can be appointed from two sets of persons: (i) those “who are elected members of the National Assembly”, and (ii) those “qualified to be elected as such members”.
Article 103 (3) stipulates that the so-called technocrat ministers must come from the second set of persons (those qualified to be elected). In passing, it should be noted that the word “technocrat” does not appear in the constitution at all, much less in reference to ministers. One wonders whether its use throws aspersions on the capabilities of other members, as if to suggest they are mere political foot soldiers with no technocratic qualifications of their own. But I digress.
The questions then to ask and answer are: who are those qualified to be elected to the National Assembly and whether Messrs Felix and Scott fall within such group? These questions lead to article 160 among others. I am helped by subparagraph 3 (a)(v) of article 160, which gives parliament the power to make provisions “for the extraction from the lists and declaration of names of candidates who have been elected…”
The literal meaning of 3 (a)(v) is that extraction is at least one of the requirements for candidates to become an elected member. Nevertheless, for confirmation, we have to find where parliament has exercised its powers under article 160. This takes us, I assume, to the Representation of the People Act Cap 103. Section 11C (4) of this act states that each party shall extract from its list “the candidates to become members of the National Assembly”. Therefore, candidates and members are two separate groups of people (the motion, remember, says candidates are members; they are one and the same). For candidates (one group) to become members (another group), they have to be extracted by the party. It follows that candidates are, at least, among those qualified to become members (the first question above).
Messrs Felix and Scott were not extracted and therefore did not become (elected) members of the National Assembly. But because they belong to a defined category of persons known as candidates, they are extractable and therefore qualified to become elected members. This eligibility thus satisfies the requirement for technocrat ministers in accordance with Article 103(2).
The flipside of this may mean that those who are not on lists of candidates are outside the reach of extraction and therefore unqualified to become either members or ministers, which is diametrically opposite to what the motion is contending.
An analogy from sports may help. A player in a squad of listed players does not become a member of the team until he is selected (extracted) to play. Being a member of the squad does not automatically make him a member of the team (as the motion contends). It only makes him eligible to become a member of the team after selection. And a person who is not even in the squad (the list) may definitely be out of the entire picture.
Former AG Nandlall, arguing in support of the motion, also asks for the courts to consider the intention and the spirit of the provisions. But if the language of the stated provisions is clear, interpretation should end there. No need exists, I would think, to look to additional sources for meaning.
Yours faithfully,
Sherwood Lowe
