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Dear Editor, I have seen a news story sourced to Mr. Gordon Moseley to the effect that President Irfaan Ali has written to ‘the outgoing Opposition Leader Aubrey Norton’ regarding the proposed substantial judicial appointments. While not flummoxed this time I was flabbergasted that such a missive could be dispatched as, with the dissolution of Parliament on 3 July, Mr. Norton ceased to be ‘a member of the Assembly’, and the office of Leader of the Opposition (LOO) was thus vacated. If anything, Mr. Norton is the “outgone” Opposition Leader! In keeping with the provisions of Articles 60, 61 and 160 of the Constitution, Mr. Norton was elected to the post of LOO in 2020 after elections held under said articles. Article 184(1) states in its chapeau that ‘[T]he Leader of the Opposition shall be elected by and from among the non-governmental members of the National Assembly….’ As Mr. Norton is elected “from among…members’ of the Assembly, it follows that he is a ‘member of the National Assembly’. Article 156, entitled “Tenure of seats of members of the National Assembly” provides in paragraph (1)(f) that ‘[A] member of the National Assembly shall vacate his or her seat therein… in the case of a member who has been elected pursuant to the provisions of article 61 or article 160(2) whenever Parliament is dissolved’. Many, including a leading figure in the soon to be constituted opposition, contend that the provisions of Article 156 on members of the Assembly do not apply to the office of LOO, and that the office is catered for instead in Article 184, entitled “Leader of the Opposition”. Normally, if such was the case, the draftsman would have included a caveat limiting the effect of Article 156 on Article 184. That caveat would have stated in essence that the former shall not apply to the latter, thereby insulating the tenure of the LOO post-dissolution; I could find no such limiting provision in my reading of the Constitution. In fact this position of dissolution not affecting the LOO is reminiscent of days long gone, in the 1966 constitution. The comparative position to the current provisions in Article 184 and 156 is set out in Article 39 (LOO) and Article 61 (Tenure of Members) of the previous document. Article 39(2), after providing for the appointment of the LOO by the Governor-General, includes the proviso (as stated above, the current provisions include no proviso) to the effect that ‘this paragraph shall have effect in relation to any period between a dissolution of Parliament and the day on which the next election of members is held as if Parliament had not been dissolved’: in other words, back in the day, the LOO survived a dissolution. Is it perchance the case then, that this paragraph fell off the page in the transition from the 1966 Constitution to the 1980 Constitution, or that the draftsman forgot to include it in the text, or even when the 2000 and subsequent amendments were being drafted? The answer to the foregoing questions is a resounding “No”. It is submitted that it was omitted for a reason, the reason being that from 1980 and beyond, it was determined that there was no utility in the LOO remaining in office post-dissolution. In any event, it is important to note that the proviso in Article 39(2) of the 1966 Constitution only allowed the LOO to remain in office between the dissolution and the day of the next election. Therefore, had the proviso survived the constitutional transition from 1966 to 1980, and were it still applicable today, Mr. Norton as I said at the outset, would have been the “outgone” Opposition Leader, after the holding of the September 1 elections – contrary to what is being contended today by the multitude. Moreover, the constitutional law experts on the internet have given an interpretation of Article 184 which, respectfully, is at variance with mine. They insist that the LOO remains in situ post-dissolution and base their contention on the provisions of Article 184(2)(a) which states that “[T]he office of the Leader of the Opposition shall become vacant if the holder thereof ceases to be a member of the Assembly for any cause other than a dissolution of Parliament’. Their contention is that this provision provides that the LOO does not have to vacate the office upon dissolution. In fact, it is submitted that it is completely the opposite: on a proper interpretation of this provision, and in the absence of any provision limiting the effect of Article 156 on Article 184 (as explained above) I respectfully submit that Article 184(2)(a) states the obvious, that is, that the office of LOO does become vacant upon dissolution – this is to be expected, as he is also a member of the Assembly, per Article 184(1). However, it also provides in the preceding part of paragraph (2)(a) that ‘for any cause other than a dissolution’, the office can become vacant: examples of this would be if he resigns from Parliament, if he is absent for a protracted period, or those referred to and stated in Article 156(2) and (3) (if he is adjudged to be of unsound mind, or if he resigns, switches or is removed from the List from which his name was extracted). Thusly, ‘other than [for] a dissolution of Parliament’, for which the office becomes vacant, ‘[T]he office of the Leader of the Opposition shall become vacant…for any cause’ such as the other reasons just stated. The fact that Article 184(2)(c) on vacating of the office of the LOO refers to reasons in Article 156 (2) and (3) for members vacating the seat of the National Assembly, in the absence of any caveat limiting the effect of the one on the other (as stated above), confirms that the LOO is a member of the Assembly, and is therefore subject to the same rules for vacating his office upon dissolution, like any other member Leaving aside the foregoing exercise in constitutional interpretation, and taking a commonsense approach – with deference to Mr. Vincent Alexander, who holds that commonsense interpretations are of dubious utility – what would be the purpose of the LOO remaining in office after a dissolution? Could he now ask the Speaker to bring an urgent matter of national importance to the floor of the Assembly? Could he continue to seek the removal of the Commissioner of Police? Could 1/3 of the opposition bench move a no-confidence motion against him, as per Article 184(3)? For that matter, is the Prime Minister still the Leader of Government Business? The answer, once again, to the foregoing questions is a resounding “No”. How could Mr. Norton be LOO in a Parliament that has been dissolved, moreso when elections have been held and the presumption in parliamentary practice, based on the results, is that someone other than he will assume the role of LOO when the 13th Parliament is convened? How can Mr. Norton be asked to give his consent to judicial appointments when he no longer has the functional authority of the Office so to do!? I hope Editor, you understand now why I was flabbergasted! Some have argued that the LOO survives a dissolution just as is the case with the Speaker. That is so as regards the Speaker but only in a limited sense as a matter of functional necessity. Just as how members of the Assembly cease to be members upon dissolution and Ministers cease to be Ministers upon the holding of an election (Article 183 (3) (c), so too the President and the Speaker remain in office, but only in case of a national emergency or if other grave circumstances arise, where Parliament has to be recalled by His Excellency and presided over by the Hon. Speaker. The Speaker cannot preside over a Parliament that has already been dissolved. Thus, barring such exceptional circumstances, Article 157 is clear that “[A] person shall vacate the office of Speaker or Deputy Speaker whenever the Assembly first meets after a dissolution of Parliament…’ that is, on November 3. Per Article 56, before the Assembly proceeds with any other business on that day, a Speaker has to be elected. I seem to recall that in the past, we have heard stories of letter(s) being dispatched to the LOO and confusion arising over their non-receipt, due to uncertainty as to whether the communication was hand-delivered to the physical Office of the LOO, or to Congress Place. Regarding the reported dispatch of a letter yesterday, I empathise with the office assistant for having been sent on a wild goose chase; to the extent that the office of LOO is vacant, he has to try again after November 3, when a new LOO will be elected before the formal convening of a meeting of the 13th Parliament Finally, a word or two of advice to the armchair analysts in “farrin” and the constitutional law experts on the internet: a Constitution is a complex, sophisticated document, not to be read and applied by the faint-hearted, or with prior presumptions. It is not to be read as you would a magazine, by flicking through the pages as if you are looking at the pictures only, or a comic book, where you attach no thought or analysis to the words of the characters in the bubbles. I pray that you read it as whole, slowly and carefully, in its entirety, as very often Articles are inter-related and have to be cross-referenced. In other words, let me break it down for you – meh seh Wheeeeeeel and Come Again! Yours faithfully, Neville Bissember
