Declaring that “the presence, absence or use of the Mace in the National Assembly is not provided for in the Constitution or the Laws of Guyana,” High Court Judge Navindra Singh has dismissed the entire case brought by the opposition, in its challenge to the December 2021 passage of the Natural Resource Fund (NRF) Bill.
He said its significance was clearly only “symbolic,” even as he underscored that it was just a “length of metal” incapable of grounding any legitimacy of acts done by elected representatives of the country.
In a strong reprimand directed clearly to the Opposition side of the House, the judge said “it is preposterous to contend that the legislative power of the nation can be halted by the abhorrent and deplorable actions of a few miscreants.”
The Opposition’s main contention had been that because the ceremonial Mace was not in place at the time the vote was taken, the Bill could not be regarded as having been validly passed.
During a chaotic session that saw upheaval in the parliamentary chamber on December 29th, 2021, opposition APNU+AFC MPs, in a failed bid to derail the passage of the Bill, attempted to seize the ceremonial Mace—the symbol of authority in the House.
In the midst of the mayhem, a replica Mace was brought in, but the Opposition was adamant that in the absence of the authentic Mace, the Bill could not have been lawfully passed. They argued too, that members were required to be seated during the voting process.
In his ruling rendered yesterday morning throwing out the case, Justice Singh said it was clear from the evidence that “the Mace is nothing more than a relic, intended only to be [of] symbolic existence in the National Assembly.”
And legally, the judge said that neither the Constitution nor the Laws of Guyana provides for the presence, absence or use of the Mace in the National Assembly.
“It is illogical to believe that the presence or absence of a length of metal can determine the legitimacy of acts done by persons elected by the citizens of the country pursuant to their elected duties,” Justice Singh said.
He then went on to further assert that it was “preposterous to contend that the legislative power of the nation can be halted by the abhorrent and deplorable actions of a few miscreants.”
On this point, Justice Singh said it was startling that the Claimants, while asserting that the Mace was an integral instrument of the authority of the Speaker and is significant to the orderly functioning of the National Assembly; the evidence clearly demonstrated that several Opposition members refused to heed to the Speaker’s call for order in accordance with the Standing Orders of the Assembly which he said embodies the settled procedural rules of the House.
Against this background, the judge chided Opposition Chief Whip Christopher Jones, in whose name the action was filed, stating that he ought to have taken guidance from the maxim “quod approbo non reprobo” which means, “what I approve I do not reject. I cannot approve and reject at the same time.”
“The absence of the Mace in the National Assembly during the passage of the NRF [Bill] did not invalidate [its] subsequent passage,” the judge said; while going on to emphasise that its presence in the House is not mandated by either the Constitu-tion or Laws of Guyana “and therefore its absence cannot result in the passage of the Bill being unconstitutional or unlawful.”
On the issue of whether holding the proceedings of that night beyond the time stipulated, without a motion to so do invalidated the passage of the Bill, the judge deferred to Article 165 of the Constitution which he noted provides for the National Assembly to regulate its own procedure and make rules for that purpose.
To this end, the judge said that the standing orders of the National Assembly were formulated to regulate its own procedure, while noting that they are not laws of the country, but rather written rules formulated and agreed to by the House, to regulate its business.
Justice Singh then went on to explain in his ruling that the National Assembly is one of three independent arms of the State and as such enjoys the right to not have its authority to regulate its own procedure impeached or questioned by another arm, in this case, the Judiciary.
He said it is indisputable that the times of the sitting of the National Assembly are entirely an internal procedural matter; and further, the fact that the regulation of those timings are not legislated for, but rather seem to have been agreed to by the Assembly itself and laid down in its standing orders demonstrates that it is a matter solely within the control of the House.
Breach of a standing order therefore, the judge said, is an issue which falls within the disciplinary powers of the Speaker and the National Assembly; and that the High Court does not possess the authority under the Constitution or the Laws of Guyana to regulate or pronounce upon any alleged breach therein.
In this regard, Justice Singh said that neither the National Assembly nor its members is answerable to the Court; while noting, however, that case law has established that the Court has no jurisdiction to judicially review the workings or operations of the Assembly “except for the purpose of determining whether the National Assembly had acted unconstitutionally or contrary to law.”
The National Assembly he said, can and must be able, to conduct its business free from judicial intervention or inquiry once its conduct does not run counter to any provisions of the Constitution or the Laws of Guyana.
Cannot inquire
The judge said it follows, therefore, that the Court cannot inquire into this alleged breach of procedure. He went on to conclude on this point that times for sittings of the House, since not mandated by the Constitution or the Laws of Guyana could not resultantly void the passage of the Bill.
Justice Singh next turned his attention to the issue of whether the Constitution requires or mandates that the National Assembly engage in consultation with “stakeholders” and the citizenry before enacting legislation.
He noted the opposition’s arguments that Article 13 of the Constitution gave members of the public a constitutional right to engage in consultation on the Bill before its enactment.
The judge said that Article 13 in fact provides that the state is to establish opportunities for the participation of citizens in the decision-making processes of the state; but noted that this cannot reasonably be interpreted to require the Legislature or the Executive to consult with every citizen when considering or enacting laws.
Justice Singh said that what is clear from legislation, is that any consultation with the citizenry and stakeholders is either through direct involvement by being part of the Legislature, the Executive or institutions that have the power to make decisions or indirectly through their representatives who they choose through a voting process.
On this point he said it is “illogical” to believe that the same Constitution which established a system of governance providing for a Legislature comprising of elected representatives to debate and enact laws, would at the same time demand that each citizen essentially become a representative.
He said that what was envisaged under the Constitution is for the elected representatives to be the voice of their respective constituencies in the National Assembly; and concluded that the Constitution does not require or mandate the National Assembly to engage in consultation with stakeholders and the citizenry before enacting legislation.
Meanwhile, on the issue of whether the House Speaker prevented Opposition members from participating in the debate of the Bill, Justice Singh said that it was Jones’ testimony that when the Speaker directed the finance minister to read the Bill for a second time, members of the Opposition stood up and started pounding their desks and shouting; and thereafter descended into the well of the Chambers, despite being admonished by the Speaker to be seated.
Justice Singh said that Article 171(1) of the Constitution provides that Bills and petitions shall be debated and disposed of according to the rules of procedure of the Assembly.
He said the Court found no evidence that the Speaker failed or prohibited Opposition members from participating in the debate.
The judge awarded costs to the defendants in the sum of $250,000 each which has to be borne by Jones and unionist Norris Witter—the other named Claimant.
The Defendants were the Attorney General, Parliament Office, the House Speaker, the Clerk of the National Assembly and the Minister of Finance.
Reacting to the ruling, Shadow Attorney General, Roysdale Forde SC, who represented Jones and Witter, said that he was “quite disappointed” with the outcome of the case, noting the case deals with a number of very important constitutional issues.
He said that after he would have had a chance to fully review the judgment and consult with his clients, an appeal would be filed if required.
Attorney General Anil Nandlall SC, on the other, hand, expressed satisfaction with the ruling and said it was his expectation that it would have gone in government’s favour.
He said he was pleased that pronouncements from the Court have been forthcoming on important issues concerning democratic governance and the constitutional preserve of the various important organs of State.
“It augurs well for our democracy, and it is important for the development of the law and our jurisprudence,” the AG said.
Regarding the award of costs, Nandlall said that his Chambers will be moving to enforce the various cost orders secured against the Opposition.
According to him, he has a pile of such cases and will be utilising the various means of enforcement, whether through seizure of personal assets—movable or immovable, imprisonment or garnishment.
Background
On the night of the controversial passage of the Bill, Opposition member Annette Ferguson, aided by a number of her APNU colleagues, snatched the Mace from its place on the Clerk’s desk in a bid to disrupt the passage of the Bill.
At a press conference the day following the ruckus in the National Assembly, House Speaker Manzoor Nadir remain-ed adamant that the Bill had been legally passed.
In their fixed date application, Jones and Witter sought a number of declarations—among them that—the conduct of the business of the House in the absence of the Mace and subsequent passage of the Bill were illegal.
They contended that the procedure went against constitutional values of the Rule of Law, democracy, and inclusive governance and the Standing Orders of the National Assembly.
Nadir’s contention had always been that a replica Mace was in place at the time the vote was taken.
He had previously told the press that the Mace used at the sitting at the Arthur Chung Conference Centre was an exact replica of the original Mace presented to the National Assembly at the time of independence.
The Speaker added that almost all Parliaments in the Westminster System have two Maces in the event of one not being found or stolen.
Forde had argued, however, that the Mace was not in place at the time the vote was taken and that a replica could not suffice.
A position of the Opposition had also been that the passage of the Bill constituted the rejection of participatory governance.
In the action, Witter had submitted that he has a fundamental right to political participation in the conduct of public affairs which is guaranteed by Article 154A of the Constitution and Article 25 of the Covenant on Civil and Political Rights.
Against this background, he was asking the Court to declare that in accordance with Article 154A, government in formulating an NRF policy, was under an obligation to engage in consultation with citizens and stakeholders.
The trade unionist contended that his rights had been contravened.
Meanwhile, Jones submitted that as a Member of Parliament, he had a right to, and a legitimate expectation that the National Assembly “would function, operate and conduct its affairs in accordance with the Standing Orders” of the House.
The Opposition and a range of civil society voices had been calling for the Bill, which repealed the Natural Resource Fund Act of 2019, to be sent to a special select committee for debate and consultations.
Ignoring those mounting calls and even the in-House protest from the Opposition to send the Bill to such a Committee, however, the PPP/C Government went ahead with the passage of the controversial legislation.
