Although finding that the National Assembly did not have the power to cut the budget, acting Chief Justice Ian Chang yesterday said in an interim ruling that the court could not restore the funding sought by government, except for allocations to the Ethnic Relations Commission (ERC) to perform its constitutional duties.
Justice Chang, in his decision on the ex parte application by Attorney General Anil Nandlall for an order to allow Finance Minister Dr Ashni Singh to be permitted to withdraw monies from the Consolidated Fund to restore the funding, upheld the budget passed by the opposition-controlled National Assembly in April.
“In summary, the court finds that the act of the National Assembly in cutting or reducing the estimates of expenditure laid by the Minister of Finance under Article 218 of the Constitution was outside its constitutional remit. Never-theless, the Appropriation Bill laid before and passed by the National Assembly and to which the President assented was not unconstitutional. Since the Constitution (and Parliament) have reposed power to take remedial action against the consequences of those cuts or reduction in the Minister of Finance and not in the court, no interim relief relating thereto can be ordered by the court,” the acting Chief Justice found in a 34-page ruling.
The government, through Nandlall, filed the court action, in which it asked for an order vacating and/or setting aside the budget reduction as well as an interim order to allow Singh to make advances from the Consolidated Fund to restore the original allocations for the agencies affected by the cuts.
Justice Chang will now hear arguments from the respondents. He told Stabroek News that he has no power to grant the reliefs sought by the government. “I have no power to grant those reliefs because the Constitution provides for the minister to take remedial actions,” he explained in a brief comment. As a result, Singh would have to approach the National Assembly to approve the restoration of the funding that was cut by the opposition APNU and AFC, which combined have one-seat majority.
In one of the small victories for the government, Justice Chang did find that the National Assembly’s reduction of the ERC’s budget to $1 was unconstitutional. He further noted that the funding was a direct charge on the Consolidated Fund as mandated by Article 222 A (a) of the Constitution and that there was a responsibility by the National Assembly to determine a lump sum by way of an annual subvention based on a review and approval of the agency’s budget.
“In order to enable that constitutional entity and its secretariat to perform its constitutional functions, the court orders the Ministry of Finance to allow all expenditures necessary from time to time for the maintenance of that entity and for the performance of it constitutional function to be charged directly upon the Consolidated Fund (as mandated by the Constitution) until the National Assembly determines a lump sum by way of subvention to meet such expenditures in accordance with Article 222 A(a),” Justice Chang wrote.
‘Vindicated’
Although Nandlall did not get the interim relief he sought, he said he was “vindicated” by the ruling. “I am pleased with the court’s ruling, my submission has been vindicated…,” he said in initial comments afterward. “In relations to the remaining reliefs, which are the substantive reliefs, those reliefs are left to be granted when the matter is fully heard and determined,” an optimistic Nandlall said.
But lawyers for Opposition and APNU leader David Granger and House Speaker and AFC leader Raphael Trotman—two of the three respondents along with Singh—did not see the ruling the same way.
Senior Counsel Rex McKay, who led Granger’s legal team, said Justice Chang’s comments were merely obiter dicta. “Everything is obiter dicta; obiter dicta means it is not a decision in itself…,” McKay told reporters.
Obiter dicta is the Latin term for a statement “said in passing” and refers to a remark or observation made by a judge that, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision.
McKay noted that Nandlall went to the court and had sought permission for the Minister of Finance to access from the Consolidated Fund the amount of $21B-which was cut from the national budget-but instead the court granted $97M of that amount for the running of the ERC.
Meanwhile, attorney Nigel Hughes, who along with Roysdale Forde and others appeared for Trotman, described the court actions as a “curious proceedings,” since the ruling was handed down without the respondents being given an opportunity to put their facts before the court.
“I have to emphasize that this is an opposed ex-parte, which means that the respondents have not been heard. The Chief Justice expressed some opinions [with] which we do not agree… but of course those opinions would be premature, they are preliminary,” he said, adding, “I don’t think it is appropriate at this stage to repeat them because of course they were not part of the proceedings,” Hughes said.
“So really and truly, what we would have had today is an order made by Chief Justice in which the Attorney General’s application in effect is dismissed, no order sought by the Attorney General as prayed for was granted,” Forde added.
Following his ruling, which was made in Chambers, Justice Chang gave the lawyers for the respondents 21 days to file an affidavit in answer and Nandlall 14 days to respond. The matter would be heard again on September 6.
‘Constitutional position’
In his summary comments, which he said were not final since the matter is merely in its preliminary stage, Justice Chang noted that the question arises as to what is the constitutional position if the estimates of expenditure in the form originally prepared and presented by the Minister of Finance do not obtain or have no realistic prospect of obtaining the approval of the National Assembly. He questioned whether the minister should go back to the drawing board and revise the estimates, taking into account the concerns expressed by the National Assembly or whether instead the National Assembly can reduce the estimates of expenditure to particular figures which meet its approval.
“Clearly, it is the Minister of Finance on whom the Constitution has reposed the responsibility of preparing estimates of both revenues and expenditure, it is the minister who must go back to the drawing board and revise his estimates with a view to its obtaining the approval of the National Assembly,” he answered.
Justice Chang said if the National Assembly withholds approval of the budget, it is for the Minister to present an amended estimate of revenue and expenditure, which removes the questionable project or programme and substitutes another which is likely to receive the approval of the National Assembly, even if this means amendment to the estimate of revenues.
“If the National Assembly were to cut or reduce the estimates of expenditure, this would mean that the estimates of expenditure would be as determined by the National Assembly rather than by the Minister. The estimates would be as determined and approved by the National Assembly rather than as determined by the Minister and approved by the National Assembly. Article 218 clearly does not give the National Assembly the power to determine the estimates for its own approval,” Justice Chang stated.
Further, even though varying amounts or levels of overlap may be found among the powers of the executive, legislative and judiciary in the constitutional architecture of such democratic States, the doctrine of separation of powers does exist in, and must inform the interpretation of, the Constitution.
“Apply that doctrine to the interpretation of Article 218, it does appear to the court that it was not permissible for the National Assembly to cut or reduce the estimates of expenditure to any particular figure, since in so doing, the National Assembly was both determining and approving such estimates. If the drafters of the Constitution had wanted the National Assembly to exercise such a power, they could have easily conferred such a power on it in the Constitution in express terms…” Justice Chang said.
He added that the matter carriers the further complication that Singh, faced with the opposition having a majority of one in the National Assembly which had voted in favour of the reduction or cut, decided to accept the estimates of expenditure as reduced by the Assembly. Thereafter, the accompanying Appropriation Bill was amended and re-introduced and laid before the National Assembly and this was later passed by the Assembly.
“No doubt, in accepting the reductions to certain line items in the estimates of expenditure, the Finance Minister acted under constraining circumstances which then obtained in the National Assembly i.e. unless the Bill was amended to conform with the cuts inflicted by the National Assembly, the National Assembly would not pass the Bill,” he noted.
However, Justice Chang said that it is irrelevant what motivated Singh to amend and lay the Bill before the National Assembly but rather what is important is that it was passed, which could not be vitiated by any duress of circumstances. “As such, [the National Assembly’s] act of passing the Bill could not be invalidated on the plea of duress of circumstances. The court finds no basis for finding that the presumption of Constitutionality has been rebutted and accordingly views the Appropriation Act as not invalidated for unconstitutionality,” he added.
The affidavit in support of Nandlall’s application was sworn to by Cabinet Secretary and Head of the Presidential Secretariat Dr Roger Luncheon and averred that no power resides in the National Assembly, either in the Committee of Supply, or at all, to move an amendment to reduce any aspect of the Annual Estimates of Revenues and Expenditure laid by the Minister of Finance.
As a result, Luncheon contended that the two motions moved by MPs Khemraj Ramjattan and Carl Greenidge to effect that the budget cuts “amounted not only to an arrogation of powers which the Constitution does not confer upon them, but was also a usurpation of a function which the Constitution exclusively resides in the Executive, thereby, abrogating the doctrine of separation of powers.”
The agencies identified in the application as being affected by the budget cuts are Office of the President, including Cabinet, Advisers to Cabinet, the Defence Board, Presidential Advisers, the Government Information Agency, the National Communications Network; Office of the Prime Minister, and specifically the Guyana Power and Light; the Ministry of Finance, and in particular the ERC, the State Planning Secretariat, and the Low Carbon Development Strategy; and the Guyana Elections Commission. Luncheon’s affidavit also stated that hundreds of persons who are directly employed by affected offices and agencies are now, without any fault of theirs or their employers, rendered jobless, colliding with their legitimate expectation of gainful continued employment.
