It is a refreshing to read in Guyana Stabroek News Neville Bissember (not only his columns) but the missives this week about the Leader of the Official Opposition (LOO) as in the 1980 Burnham constitution and the Independence Constitution. He is undoubtedly brilliant in his legal arguments, using simple prose that is easy to read and follow. Mr. Bissember, a former diplomat and who was once posted with the diplomatic team at the UN, provided clarity on the appointment and role of the LOO under the British imposed democratic constitution and the one from 1980 that emerged out of the fraudulent referendum of July1978. The scholar, who teaches law at UG, cited relevant articles and clauses of both constitutions to buttress his arguments, something few columnists and or letter writers have done. His writings consistently demonstrated a deep knowledge and understanding of our domestic law like few others have shown. He is erudite. He also is a scholar on international law which he teaches as UG. He does not attack others unlike a few discredited columnists who are paid to pelt mud at others. He is also not jealous of those who have achieved higher academic credentials than himself unlike others who have been kicked out of universities for plagiarism, academic fraud and books theft. No doubt, Bissember has come across as a man of integrity and with a commitment for respect for the rule of law. And he is humble as he stated that he awaits explanations of various clauses from constitutional experts to educate him. I pose a few queries for Mr. Bissember and constitutional experts to ponder.
The 1980 constitution has many contradictions. Bissember pointed out a few as did others who analyzed it. The writers of the constitution were called men of brilliance. It is unimaginable how “men of brilliance” could pen a document with many contradictions and lack of clarity in several clauses.
It is commonsensical that the incumbent government must continue in office after dissolution of parliament until after a new administration is sworn in following an election. As the AG, Anil Nandlall, had stated, continuation of governance is a perk of incumbency. The incumbent government must continue to govern until such time that a new administration is in place; a country can’t be without a government. It will also seem reasonable that the LOO remains in place until a new government has been sworn in. In Guyana, it is argued that a new LOO is sworn in after the new parliament meets, a full two months after the declaration of results. That is untenable and not permitted elsewhere. A question posed by lawyers is when a new President, regardless of party, is sworn in and new Ministers are also sworn in from a new election, shouldn’t a new LOO also take office right after? The LOO is a constitutional office and has cabinet rank. Should a person who is not elected from new elections (not a member of the new assembly) continue his role as LOO until parliament meets? If the outgoing LOO, who is not an elected MP, continue to hold office, why can’t other outgoing MPs to service their constituents? Several MPs in the outgoing parliament have not been elected to return in the new parliament.
Another troubling issue relating to government and opposition, regardless of party, and elections is continuation of salary for Members of Parliament. After dissolution of parliament, MPs are not paid. Is that fair when MPs who are members of the Executive continue to receive full salary? In most other countries, MPs are paid from swearing in till next swearing in of the new parliament. Dissolution of the assembly and the non-payment of non executive MPs (from ruling and opposition parties), and by extension even those who continue to receive salary, would mean they cease to represent constituents. It means for the period between dissolution of the parliament till the new parliament is sworn in, the public has no MP to represent them. Is that democratic and fair? Commonsense suggests that is undemocratic and unconstitutional. In almost every country, outgoing MPs or legislators continue to serve as the representative of their constituency until after the declaration of new elections. In USA, a legislator is elected in November (unless there is a special election) of an even year and sworn in the following January (2, 3).He continues to serve until the new parliament or when the election results are certified. The outgoing legislators USA remain on the payroll and continues representation of constituents till the new Congress meets on January 2.
In Guyana, the LOO remains on the payroll until the new parliament meets and a new LOO is elected and sworn in. If the LOO can remain on the payroll as a constitutional representative of the country, with cabinet ranking, why can’t all opposition MPs and all government MPs who are not in the executive branch also be paid till the return of the new parliament? MPs and or constituents should file a constitutional question in court on representation and payment. If they do, I am confident the CCJ will rule in their favor if the High Court and Court Appeal rule against them. A similar case was adjudicated in 2002 in Trinidad and the Privy Council. Following a tied election, and the (undemocratic appointment) of Patrick Manning as PM, the Panday led UNC refused to attend parliament after its first sitting. Manning decided not to pay the UNC’s 18 MPs of their parliamentary remuneration (salary). The illustrious Guyanese Fenton Ramsahoye challenged the non-payment of UNC MPs while government PNM MPs as well as the government appointed Senators were paid including all perks. The High Court and Court of Appeal ruled in favor of the Manning government. Ramsahoye was confident of victory at Privy Council which unanimously overturned the lower courts judgement.. The Manning government had to pay the full salary of the UNC MPs plus interests.Legislators from both sides, not serving in the executive, should challenge the law that denies the people representation and themselves payment. It is discriminatory and unconstitutional.