Abstract: In light of the grave constitutional significance of the Cherry and Miller case

emanating from the English Jurisdiction, this paper will meticulously discuss whether President
Ramotar’s decision to Prorogue Guyana’s 10th Parliament in 2014 was constitutional. It will
start by examining the concept of Prorogation, the circumstances that led to the Prorogation of
Guyana’s highest law making forum, and the relevant issues to be determined. The latter part of
the paper will address issues pertaining to Justiciability, Constitutional Supremacy and
Parliamentary accountability with the aim of determining whether his act was unconstitutional.

What is Prorogation?
The Parliament of Guyana is established by the Constitution of Guyana. In accordance with Art.
51 it encompasses the President and the National Assembly which is empowered to make laws
for the peace, order and good government of Guyana pursuant to Art. 65. In executing this
function, Parliamentary sittings are conducted by way of sessions, which essentially is a period
commencing with the first sitting of the National Assembly held after a general election or after a
prorogation of Parliament and which comes to an end when Parliament is prorogued or
dissolved. The effect of a prorogation is at once to terminate all current business of Parliament.
Not only are sittings of the Assembly at an end, but all proceedings pending are quashed except
as stipulated by Standing Orders (cite parliament website). While Parliament is prorogued, the
National Assembly cannot meet, debate and pass legislation. Nor may members of the National
Assembly ask written or oral questions of Ministers. They may not meet and take evidence in
committees. In general, Bills which have not yet completed all their stages are lost and will have
to start again from scratch in the next session of Parliament. In certain circumstances, individual
Bills may be “carried over” into the next session and pick up where they left off. The
Government remains in office and can exercise its powers to make delegated legislation and
bring it into force. It may also exercise all the other powers which the law permits. It cannot
procure the passing of Acts of Parliament or obtain parliamentary approval for further spending.
Important to note, it the fact that the National Assembly does not have the power to determine
the Prorogation or Dissolution of Parliament. This is an exclusive or prerogative power given to
the President by way of Art 70 (1).
It is salient to note that Prorogation is distinct from Dissolution of Parliament. The concepts are
entirely different; Dissolution is the bringing to an end of a Parliament, either at the conclusion
of its five-year term or by proclamation of the President. It is followed by a general election.
Parliament is dissolved in pursuance of a proclamation issued by the of President. Under article
70(3) of the Constitution Parliament expires at the end Parliament of five years unless dissolved
earlier. The life of the Second and Sixth Parliament of Guyana was prolonged beyond the
statutory period, but in other cases Parliament has always been dissolved before the expiration of
five years.
Prorogation must also be distinguished from the National Assembly adjourning or going into
recess. The sittings of the National Assembly may be adjourned from time to time by order of the
Assembly. The rules for the adjournment of the Assembly may be classified according to the
length of the period of adjournment for which the Standing Orders provide: (1) Adjournment to
the next day is fixed by Standing Order No. 8(1). At any time before the hour appointed for
adjournment, the National Assembly may be adjourned on a motion moved without notice by a
Minister after the conclusion of Questions to Ministers. Such an adjournment may be to the next
sitting day or sine die. (2) Adjournment over the week-end is effected under Standing Order No.
8(1). Adjournment for a prolonged period is called a "recess" and is from 10 th August to 10th
October. This adjournment is prescribed by Standing Order No. 9. The Speaker has power under
Standing Order No. 8(2) to call the Assembly together on an earlier day, if it is represented to
him by the Government, or the Speaker himself is of the opinion that the public interest so
requires.

The Circumstances that lead to the Prorogation of Guyana’s Parliament

 General and Regional elections were contested in Guyana on November 28, 2011. On December
3, 2011, the Guyana Elections Commission (GECOM), in accordance with section 99 of the
Representation of the People Act, Cap. 1:03, declared the results pursuant to articles 60 (2) and
61 of the Constitution. By way of declaration, it announced that out of a total of 65 seats, The
People’s Progressive Party Civic (PPP/C) had won the presidency with 32 seats, A Partnership
for National Unity (APNU) secured 26 seats and the Alliance for Change (AFC) managed to
secure 7 seats. Mr. Donald Ramotar was sworn in as the new President, he announced that he
would form a minority government - the first since Guyana gained independence from Britain in
1966. However, this unprecedented situation posed a perpetual problem for governance in
Guyana as the elected government would be forced to seek opposition support for major
spending and to pass laws. Of major concern also, was the possibility of a motion of no-
confidence being filed by the majority in the National Assembly as that could result in new
elections at any time before the end of its five-year term. Nevertheless, on January 12, 2012, the
newly-elected National Assembly held its first session, and this commenced Guyana’s 10th
Parliament. 

    On August 7, 2014, amidst criticisms being advanced against the incumbent, the Alliance for
Change submitted a no-confidence motion against the government to the Clerk of the National
Assembly. It was the intention of the party to have the motion submitted prior to the
Parliamentary recess which was set to commence on August 10 and reconvene on the 10 th of
October. At the end of the two months’ period, disagreement arose at to a date for the
reconvening of the sittings of the country’s highest law-making forum. The situation was one of
stalemate, but on November 4, 2014, President Donald Ramotar, in an address to the nation
announced, November 10th, as the date of the first post-recess sitting of the National Assembly.
He also made his intentions clear that if the opposition pushed ahead with its no-confidence
motion in Parliament, he would respond immediately by exercising his constitutional options to
either prorogue or dissolve Parliament, which will pave the way for the holding of General
elections. 

     On November 10, the day which saw the recommencement of the first post-recess sitting of
the National Assembly, Mr. Donald Ramotar issued a proclamation proroguing Parliament, the
proclamation was published in the Official Gazette, dated November 10, 2014, and it stated:

     “By the proclamation issued under the seal no. 107 of Guyana by the President acting in
accordance with Article 70 (1) of the constitution of Guyana has hereby prorogued the 10th
Parliament of Guyana on the 10th day of November, Two thousand and Fourteen”. 

   In doing so, Mr. Ramotar cited his reasons for proroguing parliament, which will be given in
point form. He said inter alia that “

1. 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.
 2. It is, however, my genuine desire to have the prorogation of the 10th Parliament ended
sooner were my Government and the Opposition to reach an agreement for a return to
normalcy. Further were these entreaties of cooperation by my government to be
unsuccessful, I would then take the necessary steps for the holding of early General
Elections so that the democratic will of our people can be freely exercised.
In essence, he invoked his constitutional powers given to him under Art 70 (1) to prorogue
Parliament in order to prevent the majority; the Alliance for Change (AFC) and A Partnership for
National United (APNU) from debating on the No- Confidence motion and subsequently passing
it against his government.

Issue

The issues to be discussed in the instant case are similar to the issues raised in the Miller and
Cherry case. In our view, the facts and circumstances of the instant case are analogous to said
case and there arises no reason why such a course of logical reasoning should not be followed.
These issues are:

(1) Is the question of whether the President prorogation of parliament was lawful, justiciable in a
court of law?

(2) If It is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

Discussion
It is an indisputable fact that the court has jurisdiction to determine whether a Prerogative power
to order the prorogation of Guyana’s Parliament exist and its extent. There lies no difficulty in
relation to this issue as it was made unequivocally clear by the House of Lords in the case of
Council of Civil Service Unions v Minister for the Civil Service that “authority for reviewing
the exercise of prerogative powers, or the powers exercised by a delegated body can be found
in Ex parte Lain [1967] 2 Q.B. 864. However, the issue in the instance case which raises
questions of justiciability is whether its exercise within its legal limits is challengeable in the
courts on the basis of one or more of the recognized grounds of judicial review. Interestingly, the
answer to this question proved inconceivable in the past as acts of the sovereign was regarded
as “irresistible and absolute” but the Council of Civil Service Unions case emphatically
endorsed the break with this approach, the modern view is that courts today will review a
prerogative power once the nature of its subject matter renders it justiciable. In other words, a
minister acting under a prerogative power might, depending on its subject matter, be under
the same duty to act fairly as in the case of action under a statutory power. Lord Roskill in that
regard indicated that the dissolution of Parliament as one of a number of powers whose exercise
was in his view non-justiciable.

In fact, Lord Roskill’s dictum was relied on in the Miller and Cherry case as a Defence and it is
likely that counsel for the President will advance such a contention. The argument stands as a
favorable one since the dissolution of Parliament as a prerogative power would be in their eyes
analogous to prorogation. It would in their defence constitute another example of what Lord
Roskill described as “excluded categories”, making the issue raised one that is non- justiciable.
However, as mentioned by Lady Hale in the said case this argument is only relevant if the issue
in the instant proceeding is properly characterized as one concerning the lawfulness of the
exercise of a prerogative power within its lawful limits, rather than as one concerning the lawful
limits of the power and whether they have been exceeded. Therefore, it is incumbent upon us to
ascertain whether the present case requires us to determine what is the legal limits in relation to
the power to prorogue Parliament, and whether the President’s decision to Prorogue Parliament
for the Purpose intended trespassed beyond that limit, or whether the present case concerns the
lawfulness of a particular exercise of the power with in its legal limits. That question is
synonymous with the standard by which the court will adjudicate the constitutionality of
President Ramotar’s decision to prorogue parliament. It is to that matter that we turn next.
By what standard is the lawfulness of the Prorogation to be judged?

It has always been the inherent will of the courts to uphold the values and principles of Guyana’s
constitution. In fact, there are many legal disputes involving the Executive and the Legislature
that have a political overtone to them and importantly our courts have exercised a supervisory
jurisdiction in these matters; take for example; Christopher Ram v AG of Guyana et al, Cedric
Richardson v The AG of Guyana et al and the McEwain case. In these cases, declarations were
not confined to the protection of individual rights, but included principles concerning the conduct
of public bodies and the relationships between them. It therefore stands, that the courts cannot at
this crossroad shirk that responsibility merely on the ground that the question raised is political
in tone or context. Every prerogative power has its limit and it is the function of the court to
determine, when necessary, where it lies. In Guyana, the power to prorogue parliament derive its
enforceability from the constitution, by way of Art 70 (1), therefore as a matter of principle the
limits will be drawn within the context of such a document.

Guyana’s written constitution adheres to the doctrine of constitutional supremacy; it is as

Antoine opines the yardstick by which all other laws are measured. In our view, principles such
as Constitutional Supremacy, Parliamentary Sovereignty and Parliamentary accountability all
enshrined in the constitution are fundamental to the democratic process and the rule of law in
Guyana. It must therefore follow, as a concomitant to these principles, that the power to prorogue
cannot be unlimited. It must be exercised within the ambits of these principles. Art 8 of the
constitution states in a cogent matter that “if any other law is inconsistent with it, that other law
shall, to the extent of the inconsistency, be void. This has been tested in many instances and the
courts have more than often allow the supremacy of the constitution to prevail. In the case of
Collymore and Abraham v AG it was held inter alia that ‘No one, not even Parliament, can
disobey the Constitution with impunity.’ In addition, Wooding CJ also said that ‘he has no
hesitation in rejecting any submission to the effect that either the High Court or the Court of
Appeal is not vested with full jurisdiction to make a declaration as to the validity of any law
alleged to contravene the constitutional guarantees stipulated by Cap 1 of the Constitution”.
This essentially means that powers, in this case, the prerogative power to prorogue parliament
must be exercised in accordance with the constitutional principles that are salient to its existence.
In the instance case, the supremacy of the constitution, parliamentary sovereignty and
parliamentary accountability would however be undermined as fundamental principles of our
constitution, if the Executive could, through the use of the prerogative, prevent Parliament from
exercising its legislative function established by Art 65 of the constitution for as long as it
pleased. That, would be the position if there was no limitation upon the power to prorogue
Parliament. An unlimited power of prorogation would therefore be incompatible with the
principles of Constitutional Supremacy, Parliamentary Sovereignty and accountability
established in the constitution by way of Art. 8, 65 and 2 respectively. In our view, it is no
answer to these points to say, that the court should decline to challenge the exercise of such a
power simply because it is a political one. Nor is it any answer to say that the President has an
unfettered discretion. There is no doubt that it is lawful to prorogue parliament as it does not
remain permanently in session. When this occurs so long as it stands prorogue parliament cannot
enact laws. In modern practice, Parliament is normally prorogued for only a short time. There
can be no question of such a prorogation being incompatible with the constitutional principles
mentioned: its effect on Parliament’s ability to exercise its legislative powers is relatively minor
and uncontroversial. However, then, is the limit upon the power to prorogue to be defined, so as
to make it compatible with the fundamental principles of the Constitution?

The answer to this question is to be found in the Miller case. In that case Lady Hale stated inter
alia that “the relevant limit upon the power to prorogue can be expressed in this way: that a
decision to prorogue Parliament will be unlawful if the prorogation has the effect of frustrating
or preventing, without reasonable justification, the ability of Parliament to carry out its
constitutional functions as a legislature and as the body responsible for the supervision of the
Executive”. This standard will be imported and applied to the instant case as it arises no reason
as to why it should not.

Conclusion on Justiciability

It is our view that the court has jurisdiction to determine whether the president’s prorogation of
parliament is lawful. We made it explicitly clear at the initial stage that the court has jurisdiction
to determine the extent of a prerogative power, in this instant case that is essentially what the
court will be doing when they apply the standard. The standard is not concerned with the mode
of exercise of the prerogative power within its legal limits it is a standard that determines the
limits of the power marking the boundary between the prerogative on the one hand and the
operation of the constitutional principles of the sovereignty of Parliament and responsible
government on the other hand. An issue which can be resolved by the application of that
standard is by definition one which concerns the extent of the power to prorogue, and is therefore
justiciable.

What needs to be determined is whether the President’s action had the effect of frustrating the
constitutional role of Parliament in holding the Government to account. It can be argued that it
certainly did since it was used as a tool to prevent a motion of no confidence from being heard.
Parliament, as the democratically representatives of the people, has a right to have a voice by
virtue of Article 1 especially when a percentage has lost confidence in the Government of the
day. The court will further determine whether there was a reasonable justification for such action
taken by the president given that it had obvious implications on the fundamentals of democracy.

The President has purported reasons for invoking his constitutional power; the question is
whether these reasons were justifiable given the circumstances to which they applied. As
previously mentioned, one of Mr Ramotar’s reasons was that he had a desire to have discussions
with the opposition.

The 24th Edition of the Parliamentary Practice of the Commons Assembly of Great Britain and
Northern Ireland, Erskine May, page 344, states; “From time to time the Opposition puts down a
motion on the paper expressing lack of confidence in the Government or otherwise criticizing its
general conduct. By established convention the Government always accedes to the demand from
the Leader of the Opposition to allot a day for the discussion of a motion tabled by the official
Opposition which in the Government`s view, would have the effect of testing the confidence of
the House. In allotting a day for this purpose the Government is entitled to have regard to the
exigencies of its own business, but a reasonably early day is invariably found….”

Therefore, in keeping with the British practice, when a motion of no-confidence was brought
against the Government in 2014, having regard to the exigencies of the Government`s business,
it was published on Notice Paper and dealt with like other Private Members’ motions that require
notice: it was placed on the Order Paper for consideration by the National Assembly twelve
(12) days from the day on which the notice was published on a Notice Paper.

This prorogation was not necessary since it trampled the democratic rights of the opposition and
by extension, its representatives who elected them. The discussions Mr Ramotar requested could
have occurred months and/or years prior to the calling of the motion, if he so desired for the two
parties to come to an amicable solution. Only “discussions” that would have been relevant were
those concerning the motion that was put forward by the opposition. There were reasons
purported by Mr. Ramotar but these reasons does not trump the procedural and lawful route in
which the motion should have been heard.