Over the last few weeks the major political parties have been speaking again of the need for constitutional reform, and generally the pace of change is so rapid that the only way to keep abreast is to consistently collaborate and change. Many aspects of state activities are outmoded and unworkable, yet for over two decades the political establishment has not taken advantage of the constitutional opportunities to discourse and make the necessary adjustments. I believe that this reluctance is because, done transparently, the most innocuous interventions involve some risk of the accretion of democratic as opposed to oligarchic political power. For this reason, while one must try to be hopeful and prepared, please forgive me if I remain skeptical that the present public outpourings will bear meaningful outcomes!
In 2014, to escape a parliamentary no-confidence vote threatened by the opposition APNU and AFC, who between them had a one-seat majority in the National Assembly, the PPP/C prorogued the parliament and immediately there were demands for the abolition of this perceived archaic political tool.
Prorogation is mainly an instrument of parliamentary-type democracies that has its roots in 16th century Britain. It ends a session of parliament and terminates any unfinished business, such as bills or resolutions that are before the house. It could be useful in national emergencies such as wars, national disasters, pestilence, etc but it was used mainly to thwart the democratic will of parliaments: avoiding confidence votes, limiting scrutiny by terminating parliamentary inquiries, preventing reports likely to embarrass the government, avoiding compliance with an order to produce documents, etc. After the PPP/C used it in 2014, I said in this column, ‘True to form, with prorogation the PPP is following a corrupt tradition … Governments do it because, notwithstanding the deluge of opposition criticism and even public protest, they reckon that they can get away with it’ (SN, Future Notes; 12/11/2014).
It has also been argued that in a parliamentary democratic setting prorogation can be an exercise of good housekeeping that allows governments to re-cast their agenda once they feel they have accomplished enough in a given session. According to this way of thinking, a proper use of prorogation arose when in 1988, Canadian Prime Minister Brian Mulroney’s Free Trade Agreement was stalled in parliament by the Liberals who demanded that an election be held before the legislation was voted upon. Parliament was dissolved, Mulroney’s conservatives won a large majority in the subsequent general election and parliament was convened in December 1988 to make the agreement law before the end of the year. Parliament approved of the legislation and then was adjourned until February, 1989. However, Mulroney needed more time to organize his government, so he requested the Governor General to prorogue parliament for another month (https://www.lawnow.org/prorogation-forged-by-history/).
The essence of this position is that prorogation is properly used where a government can win the confidence – the majority – in parliament. For instance, Prime Minister Boris Johnson’s government’s attempt to prorogue parliament during the debate over the United Kingdom leaving the European Union was controversial because it appeared not to have had the confidence of the House of Commons. ‘The Johnson government has never received a vote of confidence, either implicit (such as the passage of a budgetary measure or a vote supporting the Queen’s Speech) or explicit, and has been defeated upon a major bill as well as two resolutions for a dissolution’ (https://blogs.lse.ac.uk/brexit/2019/09/19/when-is-prorogation-improper/).
Thus if prorogation is to be utilised it is only permissible where the government can obtain a majority in the legislature and herein lies Guyana’s problem, which again results largely from a misalignment of the parliamentary and presidential aspects of its constitutional arrangements. Article 69 (1) of Guyana’s Constitution states, ‘Each session of Parliament shall be held at such place within Guyana and shall begin at such time (not being later than six months from the end of the preceding session if Parliament has been prorogued or four months from the end of that session if Parliament has been dissolved) as the President shall appoint by proclamation. Article 70 continues, (1) ‘The President may at any time by proclamation prorogue Parliament. (2) The President may at any time by proclamation dissolve Parliament. (3) Parliament, unless sooner dissolved, shall continue for five years from the date when the Assembly first meets after any dissolution.’
Guyana’s semi-presidential system gives the presidency and government to the political party that wins a plurality at national and regional elections, but on top of that has given the plurality president the authority to prorogue what could be, as happened after the 2011 elections, an opposition majority parliament. Democratic presidential systems do not usually allow the president to prorogue parliament. In the United States the president’s right to prorogue Congress has never been used and is something of a tie breaker when the House and the Senate cannot agree on a time of adjournment. Once again, Guyana’s semi-presidential system appears to have given an inordinate amount of authority to the president, and this must be discussed and possibly changed during any reform process.
A fixed term parliamentary system could eliminate the need for prorogation. If, however, one sees value in retaining it the problem could be overcome by making the consent of parliament a requirement. Of course, the question then arises as to what should be the nature of that parliamentary consent considering the character of Guyana’s polity.
Given the traditional ethnic representation of the major parties, their incestuous allegiance to the government of the day and the contemporary marginality of governments, e.g., one or two seat majority governments, a government could prorogue parliament for any number of questionable purposes, and based upon its ethnic support call and win another ethnically marginal election and proceed as if nothing has happened based upon the contention that ‘the people’ have spoken! This could become very controversial and divisive, but the contentiousness could be mitigated by a super majority requirement.
During the 2014 prorogation, the issue also arose as to whether the parliament could have been prorogued more than once in a given session, as had happened in Australia (http://www.aph.gov.au/About_Parliament/). The Constitution appears to have left this matter open, so it will have to be considered during any reform process. If the reformers see value in prorogation and the Constitution is reformed to allow it as suggested above there might not be much to object to about its being done more than once in a session.
