Skip to main content

FM
Former Member

Constitutional (Amendment) Bill No 1 needs a two-thirds majority to pass

By , July 9, 2015, Source

 

Dear Editor,

 

The Constitutional (Amendment) Bill No 1 of 2015 seeks to amend the Third Schedule of Article 222A of the constitution by adding certain entities to the said schedule. There are many complex implications which arise from this, ex facie, innocuous amendment. However, in this missive, I will only address the unconstitutionality of its impending passage in the National Assembly scheduled for the 9th July, 2015.

 

It is more commonsense and logic than law, that the schedule to an article in the constitution is part of that article. Therefore, the Third Schedule is part of Article 222A.

 

By Article 164, the constitution provides how it can be amended. Certain provisions in the constitution can be amended by a simple majority, some by a two thirds majority and some by referendum only. The device by which these articles are protected from alteration except by a certain required level of voting in the National Assembly or referendum, is called ‘entrenchment.’

 

The more important the particular article, the more entrenched it is, meaning that it enjoys a higher level of protection which translates into a requirement of a greater number of votes for its lawful alteration.

Article 164 lists Article 222 as one of the articles which can only be changed by a ⅔ majority vote of members of the National Assembly.

 

In the constitutional reform process of 2001, Article 222 was amended (by a ⅔ majority) by the addition of Article 222A and as I said earlier, the Third Schedule is part of Article 222A. Therefore, Article 222A is a part of 222 and can only be amended by a ⅔ majority. It would defy legal logic that Article 222A which required a ⅔ majority to come into existence, can be altered and worse yet repealed altogether, by a simple majority.

 

It was the 1980 Constitution that was amended in 2001. That constitution has 232 provisions. That constitution came into being by virtue of a referendum. No new article can be added to those 232 provisions without resort to a referendum. It is common knowledge that there was no referendum in 2001.

 

For this simple reason, Article 222A is necessarily a part of Article 222. If it was a new and additional provision to the constitution, it would mean that the 1980 Constitution would have been expanded to 233 provisions. That result could only have been lawfully achieved by a referendum.

 

Faced with this constitutional quandary, those who were engaged in the constitutional reform process utilized alphabetical capital letters and worked within the existing numerical provisions of the constitution to achieve their objectives. Thus, each amendment bore a capital letter and was attached to an existing provision and necessarily, is and must remain part of that article if it is to be valid. So you have 222A and not 223, but 222A must necessarily be part of 222 if it were to enjoy any validity.

 

Therefore, Article 222 and by extension 222A and the Third Schedule cannot be amended by a simple majority but only be a ⅔ majority. The APNU+AFC do not have a ⅔ majority in the House and, therefore, they cannot lawfully pass that bill without the support of votes from the opposition. If they attempt to pass this bill by a simple majority, they will be violating Article 164 of the constitution if they do so and the bill would accordingly be unconstitutional.

 

Yours faithfully,

 

Mohabir Anil Nandlall

Replies sorted oldest to newest

Originally Posted by Nehru:

Anil gat to teach Dem DUNCES!!!!!!!!!

 

The PNC currently holds a 2/3 majority in Parliament. 2/3 of 33 elected MPs. As of today, there are no PPP "elected MPs." Dem bais still at the rum shap.

FM
By Article 164, the constitution provides how it can be amended. Certain provisions in the constitution can be amended by a simple majority, some by a two thirds majority and some by referendum only. The device by which these articles are protected from alteration except by a certain required level of voting in the National Assembly or referendum, is called ‘entrenchment.’

 

The more important the particular article, the more entrenched it is, meaning that it enjoys a higher level of protection which translates into a requirement of a greater number of votes for its lawful alteration.

 

Article 164 lists Article 222 as one of the articles which can only be changed by a ⅔ majority vote of members of the National Assembly.

 

Constitutional (Amendment) Bill No 1 needs a two-thirds majority to pass, By , July 9, 2015, Source

Will be of interest to see how the PNC government will address this matter in the legislature.

FM
Last edited by Former Member

Article 164 states in part, “Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the Assembly by the votes of not less than two-thirds of all the elected members of the Assembly.
It did not say 2/3 of 65.  This Article can be interpreted as 2/3 of sitting members.

 

One could argue that all 95 on the PPP list are “elected members” and all 75 on the Coalition list are “elected members.”  The MPs are the “elected members” who are extracted from the list.  So it is 2/3 of the members present in the Parliament at the time of the vote.  That’s why in times of crucial votes it is not uncommon for an MP to be brought in on stretcher just to be physically present.

 

An by the way, when the PPP stays out they are not of "elected members OF THE ASSEMBY" because they were never sworn in.

 

VVP for Counsel Shaitaan

FM
Last edited by Former Member
Originally Posted by VVP:

Article 164 states in part, “Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the Assembly by the votes of not less than two-thirds of all the elected members of the Assembly.
It did not say 2/3 of 65.  This Article can be interpreted as 2/3 of sitting members.

 

One could argue that all 95 on the PPP list are “elected members” and all 75 on the Coalition list are “elected members.”  The MPs are the “elected members” who are extracted from the list.  So it is 2/3 of the members present in the Parliament at the time of the vote.  That’s why in times of crucial votes it is not uncommon for an MP to be brought in on stretcher just to be physically present.

 

An by the way, when the PPP stays out they are not of "elected members OF THE ASSEMBY" because they were never sworn in.

 

VVP for Counsel Shaitaan

 

That is absolutely correct. The Constitution says 2/3 of the "elected members" not 65. As of today there are 33 "elected members." The PNC can technically pass the Bill and argue that they had a 2/3 majority.

FM
Originally Posted by Shaitaan:
Originally Posted by VVP:

Article 164 states in part, “Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the Assembly by the votes of not less than two-thirds of all the elected members of the Assembly.
It did not say 2/3 of 65.  This Article can be interpreted as 2/3 of sitting members.

 

One could argue that all 95 on the PPP list are “elected members” and all 75 on the Coalition list are “elected members.”  The MPs are the “elected members” who are extracted from the list.  So it is 2/3 of the members present in the Parliament at the time of the vote.  That’s why in times of crucial votes it is not uncommon for an MP to be brought in on stretcher just to be physically present.

 

An by the way, when the PPP stays out they are not of "elected members OF THE ASSEMBY" because they were never sworn in.

 

VVP for Counsel Shaitaan

 

That is absolutely correct. The Constitution says 2/3 of the "elected members" not 65. As of today there are 33 "elected members." The PNC can technically pass the Bill and argue that they had a 2/3 majority.

Frankly I hope they do.  No time for excuses

FM
Originally Posted by Demerara_Guy:

MPs in the house of parliament which is 65.

 

32 MPs = PPP/C

33 MPs = PNCR cum AFC

 

Hey Skonthole,

 

Where are these 32 PPP MPs? There are no PPP MPs as yet. They have not been declared elected nor have they been seated yet.

FM

Certain more liberal members of the current GoG supports constitutional changes limiting certain ministerial/Presidential powers.  And interestingly, they are worried of the outcome in 2020.  Seems the mass exodus of Indians not occurring is a cause for concern among the PNC.

FM
Originally Posted by Shaitaan:
The Constitution says 2/3 of the "elected members" not 65.

Sixty five members were elected ...

 

32 members = PPP/C

33 members = PNCR cum AFC.

 

Sitting in the assembly is a separate matter.

FM
Last edited by Former Member
Originally Posted by Demerara_Guy:
Originally Posted by Shaitaan:
The Constitution says 2/3 of the "elected members" not 65.

Sixty five members were elected ...

 

32 members = PPP/C

33 members = PNCR cum AFC.

 

Sitting in the assembly is a separate matter.

Idiot Ole man do you realize that there are 95 "elected members" on the PPP list?

FM
Dude,

I assume you're joking. There aren't 95 elected members. That wouldn't make sense. An MP is deemed "elected" when they are issued a personal certificate of election from GECOM in their own name. Then they subscribe oath.
FM

Add Reply

×
×
×
×
×
Link copied to your clipboard.
×
×