Dear Editor,
The Attorney General, Mr Nandlall’s, threat to mount a court challenge against the Speaker’s decision to send the censure motion against the Minister of Finance to the Privileges Committee, comes as no surprise. The AG believes that he is on to a good thing with the courts and will no doubt try to milk that perceived advantage for all it is worth. What is surprising, because it is so cynical, is the question of the separation of powers which he raised. It is an important issue and deserves extensive airing.
The separation of powers is a key pillar of democratic governance. By seeking to keep the personnel and institutions that constitute the three arms of the state, law makers (National Assembly), courts (judiciary) and the executive (cabinet, government ministers and their ministries) and their arenas of work or responsibility separate, checks and balances are provided in relation to the exercise of power. The separation is important in preventing, for example, both conflict between entities and the rise of dictatorship on the part of the executive. For the small man that means, for example, that the courts can provide protection from the executive and can ensure that the law is equally applied to all citizens notwithstanding income or social class. Whether they do so in Guyana today is another matter. This becomes patently obvious when one contrasts the treatment of some cases locally with what happens in the USA, where a Grand Jury has recently indicted Gov Rick Perry of Texas for abuse of power, inter alia.
In Guyana the principle of separation is routinely honoured in the breach.
The question of the independence of the courts is also an issue as is evident from even a cursory reading of the proceedings of the Guyana Bar Association Conference held in November 2000. In spite of the provisions in the constitution on the role of the Judicial Service Commission, for example, Guyana’s judges are appointed by the President alone. As a consequence judges, some of whom are not only inappropriately experienced but are perceived to be politically connected, have been appointed. Four additional persons are due to be appointed under the same circumstances namely the absence of a properly instituted JSC, in the near future. Having judges and magistrates appointed in such circumstances exposes us to the possibility of biased decisions, not to mention the risk of incompetence. We recently had the embarrassment of a lawyer of questionable experience appointed as a judge. Not long afterwards the integrity and standing of Mr Sukul in the UK Bar came into question. His fitness to sit on the Guyana Court of Appeal therefore became an issue. Without action by the Guyana Judicial Service Commission he acceded to a request from the Chancellor that he resign. Furthermore, at least two senior judges have complained publicly of the abuse of presidential powers in withholding their benefits.
In September 2000 the President appointed four persons as Justices of Appeal in defiance of the recommendations of the JSC. The act was followed by a protest from the GBA which saw it as an attempt to punish one judge for handing down a decision on an election petition that did not find favour with the President. There has been no agreement between the President and the Leader of the Opposition on the appointment of the current CJ and Chancellor of the Judiciary. The appointments have been made via a device widely employed by the PPP regime, appointment to act. Furthermore, only last weekend the newspapers reported that a dispute has erupted between the judiciary and the Ministry of Legal Affairs over the recruitment and appointment of staff for the Supreme Court reporting department. This attempt on the government’s part is a clear breach of the principle of the separation of powers and a further effort at undermining the independence of the judiciary.
The legislature passes laws and the judiciary is supposed to interpret that legislation taking into account, as far as possible context, meaning that in cases of doubt about intent they look at the debate surrounding the passage, precedence, case law and in our case, the handling of similar matters in the Commonwealth and UK in particular. That is neither the job of the AG nor of cabinet.
Simply put, the executive is supposed to formulate and execute policy and implement laws. In Guyana, however, the PPP regime, on the advice of the AG, a cabinet member who sits in the Assembly, the legislature, and participates in the examination and passage of legislation also purports to vet such legislation when it is passed. There is, for obvious reasons no constitutional provision for the AG’s interference at that point, or any logical reason (it is an historical accident) for the Chief Parliamentary Counsel whom the AG has taken over, to be in his office let alone under his control. The current incumbent of the AG’s Chambers purports to pronounce on the constitutionality of legislation passed by a legislature in which he is an actor and advises the presidency not to assent to properly passed legislation simply because it is politically inconvenient. He takes two bites of the cherry.
In other words, he sits in the legislature and is in bed with the executive. There is no separation of powers at that point. It is routinely breached by the AG who is piously citing the need to respect the very principle he is doing so much to undermine.
In his threat to take the referral of the Minister of Finance to the Committee of Privileges to the courts, the latter is now being invited to usurp the National Assembly’s functions. The constitution reserves for the National Assembly the right to set rules and procedures governing its mode of work, including the disciplining of its members, MPs (Art 165-167). The AG managed to get the CJ to strike down the right of the Assembly to amend financial legislation, namely the Appro-priation Act which is the instrument enacting the annual National Budget. The inconsistency of taking such a position only in the case of Budgets seems to have missed the court which in giving its decision cited no precedent (in fact there is none) or case law or debates in the relevant legislatures that would have supported the ruling. In the process not only were the procedures of the Assembly called into question but the Standing Orders of the House were dismissed as though they were drafted without reference to the very problem with which the court was invited to grapple. The Assembly procedures were not only dismissed but the National Budget and Appropriation Act were redefined as the Minister of Finance’s. Somehow they were his when he presented them for consideration but were deemed not to remain his when he proposed that they be passed, because they had been amended. The logic is so obviously absurd that the opposition parties have no doubt that when the suspiciously long process of disputation and appeal here has been completed the CCJ will throw it out.
In a recent publication on the results of a study arising from the Republic of South Africa’s review of its own legislation on the role of Parliament in the Budget process, the authors said of the Westminster and related systems such as ours, “the most obvious determinant of amendment powers is the actual configuration of powers vested in Parliament. Most parliamentary systems apply restrictions to the powers of the legislature in budgetary matters, often relating to increases in expenditure. Reductions in expenditure can be considered the lowest common denominator across parliamentary systems. However, it is not possible to explain major variations in the magnitude of actual amendments across countries simply with reference to differences in allocated powers… Our research shows that de facto amendment powers depend on a second set of factors relating to the effective role of committees in the Budget process. This role is determined by a combination of the following factors…” He then lists the following four – the location of amendment powers, ie. whether committees have the power to suggest actual amendments to the deciding House; the time allocated to committee debates, committee involvement, ie which committees are involved in the budget process; access to independent research capacity; access to departmental information.
Additionally, there have been over 100 instances in the UK of Budgets and financial Bills being amended by the House of Commons in defiance of the wishes of the cabinet, the most recent of which was a 13 vote defeat in October 2012 of the 2014-2020 EU Budget proposed by PM Cameron. Nowhere in the Commonwealth, where even the wording of the legislation is the same as that of Guyana, has any acknowledged constitutional lawyer ever argued the case made by the PPP and supported by the CJ. In fact there have been very many instances and most have occurred under minority governments, particularly those of Harold Wilson and Jim Callaghan’s Labour governments or where governments had small majorities. Need I say more? Just in case doubts remain in the mind of readers I can do no better than to provide for the information and assessment of readers the summary table produced for the RSA study:
Rights Of Members In Budgetary Matters
Source: Inter-Parliamentary Union 1986: Table 38A
I draw attention to the fact that of the 82 cases examined, including Canada, Australia, UK, India and Germany, not a single one unequivocally prohibits the legislature from reducing expenditure. This is not surprising because the logic of modern legislatures and especially of those having the Westminster model as their frame of reference, is no taxation without representation.
While most countries allow changes to money Bills, there are wide variations in the design and impact of amendment powers. First, there is a significant distinction between parliamentary and presidential systems of government. In general, presidential systems grant greater powers of amendment although this is often counter-balanced by an executive or presidential veto. The vast majority of parliamentary countries allow amendment powers.
Guyana falls into category 3 of the table, meaning that although expenditure can be reduced by the House, no increase can be brought to the floor without the approval of the government. In fact a minister has to lay the proposal.
In the words of the authors, “…‘reductions only’ restrictions apply in the Westminster tradition, so that parliament may only reduce existing items but it may not include new ones or increase existing ones… Many countries in the Commonwealth have copied this configuration. A third set of amendment provisions constrain the legislature’s powers to modify budgets so as to promote the maintenance of the deficit or to protect aggregate totals proposed by the executive. Versions of this approach are used in some francophone and Latin American countries, for instance…”
Where does that leave us?
It leaves us with a judiciary which has handed down decisions that are inconsistent with the constitution and its roots. Such decisions are damaging because they further erode the separation of powers.
Whereas the CJ dismissed the SO on grounds that they are not law, a decision some senior members of the Bar disagree with, the authors go on to point out that although amendment powers are usually contained in a country’s written constitution, they can also be based on convention, determined by ordinary legislation, or spelled out in parliamentary rules (my emphasis).
In the face of this, the call for the courts to again intervene is again inviting them to usurp the role of the legislature. In effect the court is being asked to decide that it can exclusively or jointly discipline MPs, and is yet another example of the attempt at the further erosion of the separation of powers. If a Minister refuses to adhere to a decision of which he was a part and which he took to the President for enactment, how can he refuse to implement it without bringing the actions of the Assembly into disrepute and without subjecting the Assembly, and possibly the entire system, to ridicule? That is a matter for the legislature and it is spelt out in Art 165 of the constitution and Sections 46 and 47 of the Standing Orders of the National Assembly.
The role of the courts at this stage is not evident and the idea that the courts can arbitrate what issues are defensible in determining confidence in a government is too ludicrous for words. Indeed, a no-confidence vote does not require legal justification. A government may simply find itself accepting a cut in the emoluments of one or all of its ministers. That would be enough to trigger the resignation of a government. No defensible cause is required by the constitution or in practice.
Yours faithfully,
Carl Greenidge
