The decision of the Chief Justice in the Constitutional case AG of Guyana v Raphael Trotman and David Granger No. 216 W 2012 (the Budget Cuts case) is likely to feature prominently as the Estimates move to the Committee of Supply for detailed consideration. A publication of this nature may not be the ideal forum for a thorough discussion of the case and we will therefore make it as brief as possible even as we try to explain the decision. The salient facts are as follows:
On March 30, 2012, the Minister of Finance presented to the National Assembly the Estimates for 2012, as required under Article 218 of the Constitution of Guyana. In keeping with the Standing Orders of the National Assembly, the Estimates were referred to a Committee of Supply, made up of all the members of the Assembly but not sitting as the Assembly. In that forum, on April 25 and 26, opposition members Messrs. Ramjattan and Greenidge proposed certain amendments reducing a number of line items in the Estimates in accordance with Standing Order 76. The proposed amendments were carried and when the National Assembly resumed the Minister of Finance presented to the National Assembly an Appropriation Bill “as amended” and this was unanimously approved by the National Assembly and assented to by the President. Having voted for the Appropriation Bill that included the “cuts”, the Attorney General on behalf of the Government on June 4, 2012 then approached the Constitutional Division of the Court to declare the cuts unconstitutional.
In a ruling delivered in two parts, the court with Chief Justice (ag.) Ian Chang sitting as the sole judge ruled that the cutting of the Budget violated the Constitution.
A striking feature of the two decisions is the absence of any explanation or statement of the principles of interpretation applied by the court in arriving at its decision. The court resisted the arguments by counsel for the defendants that interpretation of constitutional provisions require a broad approach, avoiding ‘the austerity of tabulated legalism’, as well as an interpretation that leads to an absurdity. It seems strange that the court would rule that the National Assembly can cut the entire budget but not an ill-conceived project!
The preliminary ruling states the central premise on which the AG for the Government founded his challenge of unconstitutionality of the cuts is Article 218 (1) and (2) of the Constitution read in the light of Article 1 thereof. In the Affidavit of Dr. Roger Luncheon supporting the Application for the Order, Article 1 was cited to support the doctrine of the separation of powers which inhere in a democratic state. Article 1 states that Guyana is indeed in such a state “in the course of transition from capitalism to socialism”.
In that preliminary ruling, the Chief Justice stated that “simply put, the
Attorney-General has submitted that, in conferring a power of approval or disapproval of the Minister’s Estimates of Expenditure, Article 218 has not conferred on the National Assembly an implied additional power to substitute its own estimates….” In fact the affidavit by Dr. Luncheon introduced the possibility of disapproval with the words “which by necessary implication includes disapproval”.
Yet, the Court did not so interpret Article 222A which also contains the word “approved”. In fact the Court expressly called on the Minister of Finance to make money available for the non-existent Ethnic Relations Commission! On page 14 of the preliminary decision the Court proceeded to assign to the National Assembly an oversight or gate keeping function of approval or non-approval stating that “it is inconceivable that the National Assembly as a national institution would cripple executive governance by non-approval of any estimates of expenditure”. In fact the Constitution is clear about the wide law-making powers of the National Assembly which have been seriously restricted by this decision.
We remind the Court that the National Estimates contain thousands of line items including some for less than fifty thousand dollars. Does the Court seriously believe that if one of those mini-items was cut the government would be crippled? We doubt it. The irony of the decision is that it is non-approval that would lead to crippling, not any reduction consistent with peace, order and good government.
Even more strange, having assigned to the National Assembly a gate keeping function – what can and cannot pass – the Court then decides that no, you either let all out or none out! That is not how gatekeepers function.
But those are not the only contradictions. The court cautioned against recourse to other jurisdictions and then cited a decision from an Australian case to support its own ruling. Another contradiction in the decision is the statement that final non-approval of the estimates of expenditure by the National Assembly does not appear to be an option contemplated by the Constitution. Yet that is exactly the argument advanced by the Attorney General and apparently received the support of the Court.
Interestingly the preliminary ruling deemed ultra vires the addition of the words “unavoidable and unforeseen need” as pre-requisites for the use of the Contingencies Fund. The court has opened a hornet’s nest and will therefore struggle to justify the benefits which President Jagdeo signed for himself under the Former Presidents (Benefits and Other Facilities). Article 181 (2) of the Constitution allows former presidents only gratuities.
In the final ruling, the Court “saw it fit to declare that the National Assembly through the [Committee of Supply] has acted unlawfully and unconstitutionally in purporting to reduce or cut the Estimates of Expenditure…” We therefore wonder whether the Court clearly distinguished between the decisions of the Committee which is internal to the National Assembly and that of the Assembly itself.
In the preliminary ruling, the Court found “that the act of the National Assembly in cutting or reducing the estimates of expenditure … was outside its constitutional remit.” For reasons set out in the decision, the court nevertheless concluded that “the Appropriation Bill laid before and passed by the National Assembly and to which the President assented was not unconstitutional.”
Most surprisingly, the Court failed to revisit this and other issues in its final ruling and the preliminary ruling in this regard therefore stands. We therefore believe that any action by the Government to expend sums not approved under the Appropriation Act is unjustified and illegal.
We think the final ruling is wrong and that it will be overturned on appeal. Importantly, the decision has brought into the open the appropriateness of a single judge determining important matters arising out of the Constitution. That concern is certainly not helped when one considers that that Judge and well as the country’s Chancellor of the Judiciary are both acting appointees.
