LETTER: Should the government resign immediately following the vote of no confidence?
This issue troubled me deeply because this is, of course, a major issue with serious consequences so it is absolutely critical that we as a nation have clarity on it. Given the wording of the Constitution of Guyana, we hear one side saying that there must be a resignation and the other side saying that they will not resign and that uncertainty is compounded by the obvious logic for the unquestionable need for a government to be in place at all times.
So after receiving good advice and doing my own deep thinking on the issue allow me a few minutes to proffer an explanation that will provide that much-needed clarity.
Art 106(6) of the Constitution says the Cabinet including the President must resign following a vote of no confidence. Then 106(7) says that notwithstanding, the government remains in office and resigns upon the taking of the oath of office a new president following an election held within 3 months unless further extended by a vote of not less than 2/3 in the National Assembly.
So let’s dissect this a bit further. The most important point to start with and the mistake most people are making is thinking that the Cabinet is the Government. It is not. The Cabinet is created by Art. 106(1) and is merely a subset of the Government of Guyana which has many more subsets. The other subsets of the Government of Guyana created by the Constitution are: the President (Art. 89), Prime Minister (Art. 100), Vice President(s) (Art. 100), Minister(s) (Art. 100), Cabinet (Art. 106(1)), Attorney General (Art. 112(1)), and Leader of the Opposition (Art. 110).
Here is what the Government of Guyana looks like in diagrammatic form according to our Constitution:
Who comprises this Cabinet: the President, the Prime Minister, the Vice President(s), and any other Minister appointed to be a member of the Cabinet (see Art. 106(1). It is important to note at this point that not all Ministers are members of the Cabinet unless specifically appointed to become a member of this body. It is important to note that the Constitution does not allow for the Attorney General to be a member of the Cabinet but he may be invited to participate fully in proceedings as if he were a member (see Art. 106(5).
So what is the consequence of Art. 106 (6) and the Cabinet including the President resigning?
To determine this question we need to understand the purpose and function of the Cabinet. Cabinet’s purpose and function are explained in Art. 50 and 106(2) of the Constitution. Art. 50 states that it is one of three “supreme organs of democratic power” along with the President and the Parliament. And Art. 106(2) states that (i) the Cabinet shall aid and advise the President in the general direction and control of the Government of Guyana, and; (ii) the Cabinet shall be collectively responsible therefor (i.e. the general direction and control of the Government of Guyana) to Parliament.
So as one of the three bodies of supreme democratic power which shall be responsible to Parliament for the President’s general direction or control of Government it means that there can be no Cabinet meetings held, no Cabinet decisions taken, no bills emanating from the Cabinet to be tabled in Parliament, no change in policy or programme, no laws passed, and no Parliamentary sessions held save and except for the sole purpose of extending the time for which an election is to be held beyond the three months prescribed period.
It, therefore, means all bills/laws passed since the No Confidence motion was passed are unlawful even if a court grants a stay since there is no stay extant at the time of its passing.
It also means that the President must resign from Cabinet but only as a member of the Cabinet. The President does not resign as President. The President remains President until there is a new President sworn in after an election is held.
In addition, the President and the Leader of the Opposition cannot contract out of the expressed provisions of the Constitution without first changing the specific Articles of the Constitution which can now not occur in this Parliamentary Session.
So should the Government of Guyana resign immediately following the vote of no confidence? No. The Government must remain in place until the next President takes oath following an election held. The Cabinet, on the other hand, as a body within the Government of Guyana must resign immediately which includes the President as a member of that Cabinet body but he does not resign as President of Guyana as Head of Government and Head of State until a new President takes the oath following an election.