Attorney General Anil Nandlall today presented arguments to acting Chief Justice Ian Chang, opening government’s legal bid to restore over $20B in allocations cut from the national budget.
Nandlall, who is appearing in association with Solicitor General Sita Ramlal and others, reiterated the pleadings in his ex parte application that the opposition-controlled National Assembly did not have the power to effect the cuts or to substitute estimates.
In the application, Nandlall has asked the court to grant an order vacating and/or setting aside the budget reduction as well as an interim order to allow Finance Minister Dr Ashni Singh to make advances from the Contingencies Fund to restore the original allocations for the agencies affected by the cuts.
After Nandlall’s arguments, which were made in chambers, Justice Chang set July 3rd for the named defendants in the matter—Speaker Raphael Trotman, Opposition Leader David Granger and Dr Singh—to make oral responses through their lawyers.
Attorney Deborah Backer, who is among a battery of lawyers including Senior Counsel Rex McKay, attorney Llewellyn John and attorney Robert Corbin representing Granger, described Nandlall’s arguments as not having “much merit.”
Nandlall told reporters that he outlined the doctrine of the separation of powers inherent in the Constitution, which contemplates that the three branches of government—the executive, the legislature and the judiciary—must each have functional autonomy in the discharge of their functions.
“The framers of the constitution contemplated that they must have the wherewithal, which would include the necessary finances to discharge those functions and that the actions of the National Assembly has taken away from important bodies, created by the Constitution itself, the ability to function,” Nandlall said.
He named the Cabinet, the Ethnic Relations Commission and the Elections Commission among constitutional bodies that are affected by the cuts along with other executive-created bodies.
“Additionally, it is my humble view and I submitted that the National Assembly has the power to approve a budget, which is presented by the President’s designate, which in this instance is the Minister of Finance. They have the power to approve. I am prepared to concede that inherent in that power of approval is that power of disapproval. What they do not have is a power to reject the Finance Minister’s submission to the parliament in the form of estimates and putting instead of the Finance Minister’s estimates their own estimates. They don’t have that power,” Nandlall argued, saying that by doing so the National Assembly is arrogating to itself a power which it does not have, that is a power to reject and a power to substitute in its stead its own budget.
‘Bypass’
Meantime, attorney and AFC Chairman Khemraj Ramjattan, who appeared on behalf of Trotman, described the court action as one made by a “disgruntled executive” seeking a bypass to access funds blocked by the National Assembly, in accordance with all due constitutional requirements.
“The bypass mechanism deviously being sought is an interim court order which in all intents and purposes is to permit the executive to raid the Contingency Fund to redeem through the judicator what it could not procure through the legislature,” Ramjattan said after the court hearing.
He described the process as one that is “perverse and it is misconceived,” saying the National Assembly’s reduction of the $192B budget was made pursuant to a constitutional scheme of an enacted legislation and Standing Orders, under which the National Assembly is made responsible as it has the exclusive jurisdiction to monitor spending. “It is also axiomatic that the matters concerning spending and appropriation that the executive proposes and the legislature disposes,” he added.
Ramjattan said that Trotman and the AFC know that this is an area which many courts would not be eager to stray into, since “a court ought to be reluctant to venture into this political thicket created by the National Assembly’s action, which led to President [Donald] Ramotar assenting and hence giving legislative effect to the $170B budget.”
“This kind of controversy, in my submission, is non-justifiable but if I am wrong then the court must make it clear that it will not uphold the executive’s attempt to shortcut, no matter how specious its argument is as to convenience or hardship, if it is going to conflict with any reading or construction of our Constitution,” he further said.
He pointed out that disagreements which have emerged and which through litigation are mounting in Guyana because of a “lack of harmonious reciprocal actions between the Office of the President and the Parliament, moreso the National Assembly, must not result in a tearing apart of our constitution.”
“Our constitution makes it abundantly clear that the power to execute laws does not include the power to make them. And an executive, which has failed to see the making of a law fully in accordance in the shape and content of its desire because of a partial legislative veto to what it sought approval of, cannot use the judiciary through a construction device,” he declared.
On Monday, the government through the Attorney General, filed the ex-parte motion, which is the second challenge filed by government against a decision made by the combined opposition majority in the National Assembly, following a failed bid to get the court to quash the composition of key parliamentary committees.
Yesterday, Trotman, in a strongly-worded statement, warned that the continued resort to legal action over parliamentary decisions signals the danger of a constitutional crisis of unimagined proportions. “… [It] points to the grave and gathering danger of a constitutional crisis, which has the potential to assume proportions, the likes of which the nation has never seen and may be unable to handle,” Trotman said. “These challenges, in my humble opinion, are as unnatural and unhealthy as they are unconstitutional, and will weaken the already fragile fabric of our constitutional democracy,” he added, while saying a resumption of negotiations is the best means to resolving political differences.
