The court ruling that the National Assembly acted “unlawfully and unconstitutionally” by effecting cuts to the 2012 budget estimates is to be respected but remains subject to the right of appeal and it is for the National Assembly to determine and direct the way forward.
“The right of the National Assembly to approve, including the right to amend budgetary estimates, is a long established right. This Ruling by the Hon. Chief Justice is an interpretation that would have far-reaching ripples and effects throughout the Commonwealth parliamentary systems and procedures,” Parliament Office said in a statement yesterday. Attorney General Anil Nandlall has said that until the ruling is set aside by another court, the ruling must be obeyed.
Delivering his long-awaited final decision, acting Chief Justice Ian Chang on Wednesday declared that the National Assembly acted “unlawfully and unconstitutionally” by effecting cuts to the 2012 budget estimates, after finding that its power is limited to either giving or withholding approval. According to Justice Chang, while the Assembly may approve or not approve the Finance Minister’s estimates of expenditure, it has no power to change them by either reducing or increasing them. “The power to amend may involve the power to approve. But a power to approve does not imply a power to amend,” he wrote in his decision on a challenge to the cuts that was brought to the court by Nandlall.
Yesterday, Parliament Office noted that the ruling provides an interpretation of the rules and Standing Orders of the National Assembly relative to their conformity with the Constitution of Guyana. Article 171 of the Guyana Constitution is the same as those provisions in the Constitutions of all Commonwealth nations as the Standing Orders and Rules of the Parliaments of Commonwealth Nations, it noted. Article 171 pertains to the presentation of bills, motions etc. and it was under this mechanism that the budget cuts were made.
Comity
“The doctrine of the separation of powers is the foundation of Guyana’s, and all parliamentary democracies, which recognises that the rule of law must be respected and upheld. The principle of comity dictates that the three branches of government – the Executive, the Legislative and the judicial are all separate and equal, and are to respect the rights and authority of each other. To this end, though the decision of the High Court is to be respected, it remains subject to the inherent right of appeal that is reposed in the National Assembly,” Par-liament Office said.
“The Speaker was made a party to the proceedings in his capacity as a representative of the National Assembly, and as such, it is for the National Assembly to determine and direct the way forward in conformity with Article 171,” it added.
Yesterday, Nandlall also expressed concern at statements by representatives of the opposition parties on the ruling. “In essence, they have indicated the intention of their respective parties, to cut the 2014 Budget despite the clear, definitive and final pronouncement of the Chief Justice that the Opposition have no power under the Constitution or at law to do so,” he said in a statement.
Pivotal
“In these challenging circumstances, the Speaker of the National Assembly has a pivotal role to play. As the authority in charge of the National Assembly, it is his responsibility to ensure that those under his charge comply with the Constitution as declared and pronounced by its guardian, the Judiciary. From this responsibility he cannot resile. He, himself, is a creature of the Constitution. The power he enjoys is derived from the Constitution. One can only hope that he protects and does not desecrate or aid and abet the desecration of his creator- the Constit-ution,” he said.
Despite several at-tempts, Stabroek News was unable to reach Speaker of the National Assembly Raphael Trotman yesterday.
Nandlall said that the opposition lawyers making the pronouncements about budget cuts ought to be the ones advising their clients and other members of their parties, who are not lawyers, what the legal position is when a court of law has pronounced on a matter of law.
“The position is, unless and until, a pronouncement made by a Court is set aside by another Court of competent jurisdiction, that pronouncement must be obeyed and respected by all, irrespective how wrong one may feel that pronouncement is. This is an elementary principle which harbours no exception whatsoever. It is designed to protect and maintain the integrity of the administration of justice, the rule of law, and indeed the entire society,” he asserted.
“In this instance, the contumacious and contemptuous disregard for the judicial pronouncements is not coming from the ordinary citizen but from law-makers themselves, who are also political leaders. If these constitutionally and politically highly placed persons advocate and protagonise disrespect and disregard for judicial pronouncements, what message and what signal are they sending to the ordinary man. Why should he obey Court orders or the law, when those who make the law and who hold high political office, flaunt and flout them,” the AG declared.
Nandlall said that the Doctrine of Separation of Powers devolves onto the Executive, the Legislature and the Judiciary, clearly delineated and defined powers and functional responsibilities.
“The Constitution recites them in its provisions. Each of these organs is expected to operate within their respective provinces and not to trespass onto the territorial power and responsibility of the other. Importantly, they must discharge their functions independently but with reciprocal comity,” he said.
“What will happen if the Judiciary is to reciprocate tomorrow and refuse to interpret the laws passed by the legislature. Chaos and anarchy shall be the natural consequences. Moreover, the criticisms levelled against the Honourable Chief Justice for his ruling are not only wrong and baseless but are callous and undignified. Indeed, they are capable of being construed as an attack on the independence and integrity of the Judiciary. Those who are aggrieved are free to pursue an appeal against the ruling. Attacking and scandalising the judge is unlawful as it is distasteful,” Nandlall asserted.
In June of 2012, Nandlall moved to the court to seek reliefs after opposition parties APNU and the AFC, using their combined one-seat majority in the National Assembly, moved to reduce the estimates by $21B. Similar cuts were effected last year.
While Speaker Trotman, Opposition Leader David Granger and Finance Minister Dr Ashni Singh were named as defendants in the action filed by Nandlall, Justice Chang struck out Granger and Singh as defendants and dismissed the case against them. He said that Nandlall’s cause of action against them was based on words spoken by them before the Assembly or for motions brought by them therein but Article 172 (2) of the Constitution procedurally debarred the institution of curial proceedings (criminal or civil) against them for words spoken by them before the Assembly or for moving motions therein, among other things.
Nandlall had sought declarations from the court that the reductions were an abrogation of the doctrine of separation of powers as well as unconstitutional and unlawful; an order vacating and/or setting aside the reductions; and 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’s ruling is largely in line with a preliminary ruling that he delivered in 2012, where he found that the act of the cutting or reducing the estimates was outside the National Assembly’s constitutional remit. Nonetheless, he had said that the 2012 Appropriation Bill that was subsequently passed by the National Assembly and to which the President assented was not unconstitutional.
Among issues also addressed in the ruling is the question of the court’s jurisdiction over the Assembly. Justice Chang acknowledged that as “a matter of generality,” the court has no supervisory jurisdiction over the Assembly but he added that it is “constitutional heresy” to state that the court has no supervisory jurisdiction at all over the Assembly.
