John Berkeley, in the introduction to his seminal treatise, ‘The Principles of Human Knowledge’, observed “…I am inclined to think that the far greater part, if not all of those difficulties which have hitherto amused philosophers, and blocked the way to knowledge, are entirely owing to ourselves – that we have first raised a storm of dust, and then complained that we cannot see.”
One would have supposed that in the light of the clarity provided by the Caribbean Court of Justice decisions in the No Confidence Motion and GECOM Chairman cases, the dust would have been effectively settled on the path forward, yet we seem to have been plunged right back into an atmosphere of wilful obscurity.
The CCJ in Section 5 of its decision notes:
“The judiciary interprets the Constitution. But, as we intimated in our earlier judgment, these particular provisions require no gloss on the part of the Court in order to render them intelligible and workable. Their meaning is clear and it is the responsibility of constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President. The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office…”
On both sides of the divide, we continue to see what can only be interpreted as a deliberate and frankly disingenuous obfuscation, even as the Court in Section 8 of its judgment reinforces the basic concept of the resignation of Cabinet and the continuation of [Executive] government:
“It is important, however, that the Court makes this point. In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence.”
The distinction between the Executive government as a whole and Cabinet as particular organ of the Executive is covered comprehensively in Chapter X of the Constitution, helpfully labelled ‘The Executive’. Articles 99-105 cover respectively: 99, ‘Executive authority of Guyana’; 100, ‘Establishment of the Office of the Prime Minister and other Ministerial Offices’; 101, ‘The Prime Minister’; 102, ‘The Vice-Presidents’; 103, ‘Ministers’; 104, ‘Ministerial Appointments during Dissolution’; and 105, ‘Non-elected Ministers to Sit in Assembly’.
It is Article 106 that deals with the establishment of Cabinet, and which states:
“106. (1) There shall be a Cabinet which shall consist of the President, the Prime Minister, the Vice-Presidents and such other Ministers as may be appointed by the President to it.
(2) The Cabinet shall aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefor to Parliament.”
A key part of the opposition rhetoric has been that “the government is illegal”. It should be noted that the office of the Leader of the Opposition is established under Chapter X, Article 110, effectively placing that office within the realm of the executive government. Taken to its logical conclusion, any argument that says that the executive government as a whole is illegal by virtue of the provisions of 106(6), and which ignores the inclusion of 106(7), is an argument that renders the office of the Leader of the Opposition also illegal.
This illogical conflation of Cabinet and Executive Government is something that the government is also guilty of, except in this case the clear provision of 106(6) is ignored and the part of 106(7) affirming the continuation of the executive is focused upon. Hence, we have this strange introductory paragraph of the post-judgment release from the administration:
“The Government accepts that it is an ‘interim’ government but emphasises that Cabinet has not stopped functioning and government must continue to provide public services. The Constitution of Guyana at Article 106 (7) states that, notwithstanding its defeat in the National Assembly, the Government shall remain in office and shall hold an election.”
To be unequivocally clear, the successful NCM – having triggered 106(6) – puts an immediate end to Cabinet as observed by both the Chief Justice and the CCJ. This does not translate to an end to provision of public services. Ministers of government are still in policy and practical control of their ministries, with the day-to-day administration of ministerial government being under the purview of permanent secretaries. For national defence purposes, the President remains without question the Commander-in-Chief, and not a ‘caretaker’ head of the armed forces.
The semantics of both sides are irrelevant – ‘caretaker’ and ‘interim’ are in their present usage merely partisan rhetoric. What matters are the logical changes that flow from 106(6), changes that are intrinsic to the functions of Cabinet, as are enshrined in the Constitution, other legislation and arguably also in convention.
The exclusive powers of Cabinet are wide and varied and cover everything from state board appointments, to various categories of legislation (importantly certain financial bills), to permission and expenditure for certain categories of overseas travel, to constitutional provisions covering who is authorised to perform the functions of the President.
Perhaps most relevant to the present debacle is the role of Cabinet in the public procurement process. While the establishment of the Public Procurement Commission was intended to eventually phase out the role of Cabinet in the award of public contracts, this is a process that is still currently underway and Cabinet retains a role in authorising contracts above a certain threshold and in annually raising that threshold until its role is finally phased out completely. The activation of 106(6) effectively prevents the award of any contract that is above the threshold required for Cabinet approval, as well as Cabinet’s power to raise any procurement threshold.
The NCM having triggered the automatic resignation of Cabinet, we are returned to a period in which it as if the President had not yet selected his Cabinet, and is therefore constrained from any actual or categorical decision that is required by Cabinet to make or the establishment of Cabinet to give effect to. The Ministers of government otherwise retain all other powers as have been invested in them by the laws of Guyana.
In brief, the Constitution is sound: 106(6) recognises that the government is defeated, while 106(7) taken in conjunction with the former provides for the restricted interim, caretaker status of an executive government stripped of the powers of Cabinet until elections and after the elected President appoints a new Cabinet, whether those elections are in three months or such longer time as afforded the government under either the provisions of 106(7), which is an extension via the National Assembly, or via 162(2) which envisions GECOM [legitimately] postponing a date proclaimed by the President in keeping with his constitutional obligations.
I have attached what I believe to be a basic diagram illustrating the delineation between Executive government and Cabinet as an organ of Executive Government as established by Article 106 of the Constitution, before and after a No Confidence Motion.
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