By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on November 10, 2014
Updated on November 12, 2014
On November 10, 2014, Executive President, Donald Ramotar, in an address to the citizens of the Cooperative Republic of Guyana, provided his reasons for issuing a Proclamation proroguing the 10th Parliament of Guyana. His reasons centered on the No-Confidence Vote that was to be introduced by the Alliance for Change (AFC) and supported by A Partnership for National Unity (APNU), whose combined vote give the opposition a majority in Parliament.
Proroguing is a power the President has under Article 70 (1) of the Constitution of the Cooperative Republic of Guyana, Chapter 001:01.That section provides that:"The President may at any time by proclamation prorogue Parliament." The Legislative history on the debates on the 1980 constitution contains little on the powers to prorogue Parliament. A question was raised by M. F. Singh of the Liberator Party, however, that question did not deal directly with this subject matter. So that their is little to no legislative history on this section of the Constitution in the debates.
On the subject matter of the effect of proroguing Parliament, Attorney at Law, Christopher Ram observed that:
Prorogation brings the sittings of the House to an end and neither the House nor any of its committees may meet following prorogation until Parliament is again specifically summoned to meet. Note however that Parliament is not brought to an end by prorogation and in that regard prorogation differs from dissolution which not only brings the sittings of the House to an end but also brings Parliament to an end and precipitates a general election.
If the President does prorogue the National Assembly it seems that the Executive can function for as a long as six months without any further session or sitting of the Assembly. If my reading of Article 69 of the Constitution is correct, it seems too that the President can re-convene the National Assembly at any time no later than such six months and then immediately prorogue the Assembly again. (Online: Christopher Ram Blog page <http://www.chrisram.net/?p=1577#more-1577>, Tuesday November 11, 2014)
The reasons provided by the President for such an action are as follows:
It is no secret that the Parliamentary Opposition parties had, at every conceivable opportunity, made known their clear intention to have their motion of no confidence against my Government debated instantly at the first post-recess sitting which was called for today, November 10. Their one-seat majority in Parliament could only mean its passage and the immediate irreversible dissolution of Parliament.
My appeals to return to normalcy, to constructively address the many important issues confronting us in Guyana, appear to have fallen on deaf ears.
The Opposition in Parliament intends to end the life of the 10th Parliament with immediate effect, dashing all hopes for urgent attention to issues relating to economic growth, social services and yes, the holding of Local Government Elections.
The President then went on to "assure all that my decision ensures that the life of the 10th Parliament is preserved up to a maximum of six (6) months, as permitted by the Constitution of Guyana."
Unfortunately, in my view, the reasons provided by the President are not cogent and does not provide a reasonable basis for the action taken by him. His exercise of discretion is lawful but it impact and/or effect serves to disenfranchise the majority of the Guyanese people who elected their Members of Parliament to serve in the Parliament and to hold the government of the day to account.
In addressing the discretion of the President to use the power of proroguing parliament that reside with him under Article 70 (1) of the Constitution of the Cooperative Republic of Guyana, Human Rights Lawyer, Ulele Burnham, posits:
When a discretion is vested in a member of the legislature it must be exercised judiciously and for the public good. What it is being used for here is not for the public good as any of us understand it, but to protect a government under threat of nothing more than a demand for accountability by elected representatives. What you say seems to amount to this ( and herein lies the problem for Guyana) : If Burnham invented it for the preservation of the power of (his) executive then we too must use it for the preservation of ours. Do fuh do nah obeah...Then this government must blame no body other than itself for the decline in public ethics. It had it in its own hands to alter things and it has opted for the low road. (Online: Enrico Woolford page <https://www.facebook.com/enrico.woolford?fref=nf&pnref=story>, Tuesday November 11, 2014)Opposition Leader Brigadier David Granger of APNU stated in Parliament that President Ramoutar has "single-handedly engineered a constitutional crises" to:
1) Avoid parliamentary scrutiny;In terms of the prospects, success and risk of this use of a Presidential Prerogative, Former Speaker of the National Assembly Ralph Ramkarran observed that:
2) Avoid the no-confidence motion which was scheduled to be debated on November 10, 2014;
3) Avoid holding Local Government Elections;
4) Avoid debate on the financial excesses and improprieties;
5) protect the reputation of its ministers from parliamentary scrutiny and sanctions;
6) permit the PPP election campaing to proceed unhindered;
7) continue the expenditure of state funds without parliamentary scrutiny
8) move Guyana into a one-party state.
The political heat that would be generated by prorogation would mean that the Government would be unlikely to later obtain Opposition support to approve a budget and estimates. It would, therefore, have to dissolve the National Assembly in April and call elections. Of course, the Government has been spending without parliamentary approval and may continue to do so where it deems that the spending is necessary due to ‘unforeseen’ and similar circumstances. Even though the Government would hardly be able to justify that its own act of prorogation creates ‘unforeseen’ circumstances, stranger things have happened.
But what about the President’s challenge to the AFC to’ bring it on’ and ‘make my day?’ A prorogation of the National Assembly as a tactic to delay holding elections to a later time that is more favourable to the Government would not be unusual. Prime Minister Stephen Harper did it in Canada when a no confidence motion was threatening his second minority government. But in our case, where the Government dared the AFC, a prorogation would create the impression that it has dropped its bravado and is slipping through the back door.Human Rights Lawyer, Ulele Burnham, having regard to the process to amend the 1980 Constitution, promulgated by her father, then President Linden Forbes Sampson Burnham wrote:
(Online: Ralph Ramkarran "Slipping through the Back Door" <http://conversationtree.gy/slipping-through-the-back-door/> Conversation Tree, Tuesday November 11, 2014)
....My suspicion is that no-one may have properly anticipated the prorogation power being used in this way or in these circumstances? As I recall Albie Sachs, one of the architects of the new South African constitution, was involved in some part of the constitutional reform process which included a number of internationally recognised legal luminaries. Given their task, it may well have been that they did not regard the power to prorogue as either the most offending provision of the constitution or as inherently undemocratic - which of course it is not. (Online: Enrico Woolford page <https://www.facebook.com/enrico.woolford?fref=nf&pnref=story>, Tuesday November 11, 2014)Recently at Walter Rodney Commission of Inquiry Basil Williams, shadow Minister (opposition critic) Attorney General and Minister of Legal Affairs of Guyana addressed the 1980 Constitution and its executive powers with - Justice Charles R. Ramson, S.C., O.R., three-time Attorney General and Minister of Legal Affairs of Guyana:
Mr. Williams: Alright. Now, the final thing I want to address you on and ask you to deal with the Commission on, is this 1980 Constitution that was so vilified at the time.Opposition Leader Brigadier David Granger in a speech in Parliament called for the mobilizing of Trade Unions, Churches, Masjids, Mandiers, and citizens in peace. He also called for an early revocation of the Proclamation proroguing the 10th Parliament of Guyana. It is safe to say that Guyana has gone into the realm of uncertainty and the resources of the Guyana Police Force will be taxed as the Guvernment used its police and military mite to crush the will of the Guyanese people and their duly elected representatives.
Justice Ramson: It was what?
Mr. Williams: So vilified at the time. Now, this Constitution according to you is substantially the same here and exists today? Justice Ramson: Yes. But we have added human rights…
Mr. Williams: And that Constitution, notwithstanding the attacks on it, you have had President Jagan, Mrs. Jagan, President Hinds, President Jagdeo and now President Ramoutar all operating under the same constitution.
Justice Ramson: Your use of the language. It is not the same. It has been adjusted. If you remember there was a big adjustment in 2003.
Mr. Williams: Adjusted to do what?
Justice Ramson: To include a lot of corrections.
Mr. Williams: To reduce the Executive powers?
Justice Ramson: If you were the President, you would reduce it?
Mr. Williams: So you agree that the Executive powers were not reduced?
Justice Ramson: I do not think he should reduce it. You do not tinker with a Constitution. So we have to call a new Constituent Assembly and waste the people’s money.
Politics as it is in Guyana, one can expect that will the Proroguing of the 10th Parliament an autocracy will no reach its zenith. That newspapers were reporting on November 09, 2014 the stepped up training of the Tactical Services Unit of the Guyana Police Force in anticipation of public demonstrations: See, Police undergo riot/public disorder training ahead of looming elections, INEWS Guyana, November 09, 2014; TSU Riot/Public Disorder Squad continues training for any eventuality, Guyana Chronicle,, November 08, 2014.
The Secretary General of the Organization of American States (OAS), José Miguel Insulza, issued a statement on its website:
The head of the hemispheric Organization said, "in a democracy, an efficient functioning of the Parliament allows for checks and balances and for the voice of the people to be heard." He recalled that "since the last elections in November 2011, Guyana has had a split governance system with the executive controlled by one party and the combined opposition having the majority in Parliament." In this context, Insulza said "this situation presents both challenges and opportunities for all parties in Guyana to work together for the greater good of the country."(Online: Organization of American States (OAS) page - press release E-483/14 <http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-483/14>, Tuesday November 11, 2014)
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Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago) is a Constitutional, Civil, Human Rights and Criminal Litiigation Lawyer at Pieters Law Office based in Toronto, Canada.
Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.
Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.
Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)
Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).
Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.
Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)
Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)
Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.
Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.
Selwyn has appeared in Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing
Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.
Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.
Selwyn has appeared in Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing
