September 27, 2016

We will not turn a blind eye to unconstitutionality

Dear Editor,
I refer to a letter written by Raphael G C Trotman, MP, Minister of National Resources, and published on March 1, 2016, in another section of the media.
In that letter, Mr Trotman seeks to defend his Government who passed a Bill in the National Assembly on February 27, 2016, with only 32 of its 33 members being present and voting. For the avoidance of doubt, the Opposition did not support the Bill. This was made axiomatic long before the voting took place. Two members of the Opposition, Irfaan Alli and I spoke in the debates on the Bill and signalled the unequivocal non-support of the Opposition thereof. Concomitantly, amendments to the said Bill were tabled by yours truly and seconded by Clement J Rohee.  Therefore, when the proceedings reached the voting stage, the Opposition’s non-support ought to have been unequivocal and unambiguous to any rational mind. Moreover, immediately after the vote was taken and the Speaker ruled, the Opposition’s Chief Whip and the Opposition Leader, from the floor, informed the Speaker that the Opposition did not support the Bill and only 32 members of the Government voted for the Bill and that, therefore, the Bill did not pass. The outcome is now common knowledge.
Learned Counsel, in support of his propositions, strangely sought refuge in “a well-established Commonwealth parliamentary practice” rather than resort to our supreme law, the Constitution which speaks directly to the issue.
Article 165 (1) of the Constitution provides: “Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure and may make rules for that purpose.” It is clear, therefore, that while the National Assembly has a jurisdictional freedom to regulate its own procedure, it can only do so and the rules which it makes for that purpose can only be intra vires the Constitution and not in violation thereof. Accordingly, Standing Orders must bend and bow at all times to the Constitution and not vice-versa.
Article 168 (1) provides: “Save as otherwise provided by this Constitution, all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.
(2)  Except as provided by the next following paragraph, the Speaker or other member presiding in the Assembly shall not vote unless on any question the votes are equally divided, in which case he or she shall have and exercise a casting vote.
(3) A Speaker elected from among persons who are not members of the Assembly shall have neither an original nor a casting vote and if, upon any question before the Assembly when such a Speaker is presiding the votes of the members are equally divided, the motion shall be lost”.
These constitutional provisions apply to the passing of Bills mutatis mutandis.
Applying the above constitutional provisions to the matter under review, the following is clear: that whether Dr Roopnaraine was in the Members’ Lounge or at Timbuktu, he was not “present and voting” as Article    168 (1) requires:  32 votes cannot be a majority in a 65-seat National Assembly; the current Speaker has neither an original vote nor a casting vote; when the votes are equal, the Bill will fail; even if the Opposition had abstained on the vote, the Bill would have failed for want of a majority.
In the face of express constitutional provisions, pontifications about the decibels of the “yea” or “nay” should never emanate from a trained legal mind.  Admittedly, the matter could have been rectified if the vote was re-taken with Dr Roopnaraine being present.   But incompetence and arrogance prevailed.   From Mr Trotman’s letter, it is obvious that the same continue.
Needless to say if the Bill is assented to by the President, it will be challenged. We will not turn a blind eye to a manifest unconstitutionality.

Yours faithfully,
Mohabir Anil
Nandlall, MP
Attorney-at-Law

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