Ministers will continue to hold office until the election of a President under article 177

Dear Editor,

I refer to a letter published in Stabroek News dated Friday, March 26, 2020, under the penmanship of Charles S. Ramson, attorney-at-law, captioned `As of March 2nd Ministers, including the PM, no longer have valid appointments’.

Ramson attributes his caption to the provision of Article 104 which reads thus:

“Articles 101 (1) and 103 (2) shall have effect in relation to any period between a dissolution of Parliament and the day on which the next election of members of the Assembly is held pursuant to the provisions of article 61, as if Parliament had not been dissolved.”

I disagree with the contention that those appointments have a life span that is limited to the period between a dissolution of Parliament and the day on which the next election of members of the National Assembly is held.

To so assert is to confuse these appointments with the tenure of ministers.

Article 104 empowers the President to appoint a Prime Minister and Vice Presidents and other Ministers under Articles 101 (1) and 103 (2), respectively during any period between the dissolution of Parliament and the day on which the next election of members of the Assembly.

This article does not provide for the tenure of office of Ministers which is dealt with by Article 183 (below) and in this case Article 183 (3) (c) . Article 106 (7) provides that the Ministers shall remain in office and shall resign after the President takes the oath of office following the elections and is in consonance with Article 183 (3) (c).

In fact, Articles 108 and 183 speak to the tenure of Ministers.

Article 108 provides: “The office of a Minister shall become vacant in the circumstances set out in article 183.”

Article 183 of the Constitution provides for the tenure of the Ministers and sets out several circumstances under which a Minister ceases to hold office. This article states that:

(1) The office of a Minister who was not an elected member of the Assembly at the time of his or her appointment and has not subsequently become such a member shall become vacant if the holder of the office:

– ceases to be a citizen of Guyana; or

-if he or she becomes disqualified for election as a member of the Assembly by virtue of article 155 or of any law enacted in pursuance thereof.

(2) The office of any other Minister shall become vacant if the holder of the office:

– ceases to be a member of the Assembly for any cause other than a dissolution of Parliament;

– is not a member of the Assembly when the Assembly first meets after a dissolution of Parliament; or

– is, by virtue of article 156 (2) or (3) required to cease to perform his or her functions as a member of the Assembly.

(3) The office of any Minister shall become vacant:

– if he or she resigns it by writing under his or her hand addressed to the President;

– if the President so directs; or

– on the election of any person to the office of President pursuant to the provisions of article 177.”

This is the position whether the life of the Government has been cut short by a no-confidence motion or not. It is noted that this article is not subject to any other article.  Further, it is clear from article 183(2) (a) that a Minister does not cease to be a Minister when Parliament has been dissolved.

Therefore, if a Minister does not cease to be a Minister in the circumstances outlined in articles 183(1), (2), (3)(a) and (b), then the Minister will continue to hold office until the election of any person to the office of President pursuant to the provisions of article 177 (article 183(3) (c). Article 177 deals with the election of a President.

The effect of article 183 (3) (c) is that the tenure of a Minister is linked to the tenure of the President unless a Minister ceases to be a Minister pursuant to any of the other circumstances listed in article 183.  The tenure of a President is stated in article 92 which states that:

“A person assuming the office of President in accordance with the provisions of this Constitution shall, unless his or her office sooner becomes vacant under article 178, continue in office until the person elected to the office of President at the next election held under article 91 assumes office.”

In conclusion, notwithstanding any protracted period or delay of the declaration of the election result, such will have no impact on the status of ministers in light of the exposition of the said provisions of the constitution.

Yours faithfully,
Darren Wade