The Ministry of Finance recently issued a circular to the heads of all budget agencies to begin preparations for the 2020 Estimates of Revenues and Expenditures. Budget preparations are both a constitutional and legislative requirement, and there are strict timeframes involved. By Article 218 of the Constitution, the Minister of Finance must present to the National Assembly estimates of revenues and expenditure within 90 days of the commencement of the fiscal year. Additionally, sections 12-13 of the Fiscal Management and Accountability (FMA) Act require the Minister to establish a timetable for the preparation of the annual budget proposal not later than 180 days prior to the commencement of each fiscal year, including the preparation and distribution of a Budget Circular to all budget agencies.
Prior to 2015, the Government had utilized the maximum timeframe allowed for the presentation of the national budget to the Assembly. This had resulted in significant adverse effects, especially in relation to procurement planning, the execution of the Government’s capital programme and the rolling-over of unspent balances at the end of the year in breach of our financial laws. It will be recalled that the 2015 national budget was not presented to the Assembly until some eight months into the fiscal year because of the prorogation and dissolution of Parliament, resulting in a significant slowing down of the economy. Budgets are now approved before the fiscal year begins. There is therefore even greater pressure to begin budget preparations early enough. We raise this matter because some concerns have been expressed as to whether the Ministry of Finance should proceed with budget preparations in the light of the Caribbean Court of Justice (CCJ) ruling on the 21 December 2018 no confidence vote on the Government. We, however, believe that the budget process should proceed as normal and in conformity with the constitutional and legislative requirements, regardless of the current political situation.
Last week, we provided the highlights of the CCJ ruling on the validity of the no confidence vote. The court had ruled that the motion was validly passed since 33 Members of Parliament (MPs) voted in favour while 32 voted against in the 65-member Assembly. In today’s article, we provide similar highlights of the second case that was referred to the CCJ for a ruling – the appointment of the Chairman of the Guyana Elections Commission (GECOM). The President had appointed Justice (Ret’d) James Patterson on 19 October 2017 after rejecting on three separate occasions the list of six names submitted to him by the Leader of the Opposition. A judicial review of the President’s action was sought. Both the High Court and the Guyana of Appeal ruled that the appointment was in order.
Legal issues involved
Having reviewed the facts of the case and the submissions and arguments presented, the CCJ considered that the dispute required the Court to interrogate Article 161(2) of the Constitution. Specifically, the CCJ considered the following legal issues to have arisen and for which it sought to provide answers:
(a) What does Article 161(2) mean?
(b) What steps should be followed for it reasonably to be operationalised?
(c) What are the respective obligations of the constitutional actors referenced in the Article?
(d) How do they discharge those obligations? Is thedischarge of those obligations reviewable?
Jurisdiction of the court
Before addressing the above questions, the CCJ referred to the Attorney General’s contention that the court lacked jurisdiction in the matter since it was excluded from Article 163 which gives the High Court exclusive jurisdiction to review specific matters including elections. The Attorney General had also contended that even if the matter was justiciable, it was the Leader of the Opposition who should have sought judicial review and not the appellant, Mr. Mustapha, a citizen, a registered elector and a Member of the National Assembly.
The CCJ considered that these objections were raised in one form or the other in the courts below and were rightly overruled. Accordingly, it expressed the following view:
Unless specifically ousted or constrained, the court has an inherent and unfettered jurisdiction in matters relating to the interpretation of the Constitution. It is the court that authoritatively settles what the Constitution means and whether some action that is taken by a constitutional actor is within or outside that actor’s constitutional remit… Where legitimate questions are raised by a citizen that the appointment of the Chairman of GECOM may not have been in accordance with the imperatives of the Constitution, the court is free to have resort to its inherent jurisdiction and should not turn away the person who poses such questions. Democracy and the rule of law are nourished by both the posing of such questions and the court’s answers to them.(Paragraph 14)
The CCJ stated that it agreed entirely with the decisions of the courts below that these preliminary objections had no merit.
Meaning of Article 161 (2)
Prior to 1990, the Chairman of the Elections Commission was appointed by the President in his own deliberate judgment from among persons who fulfilled certain defined eligibility criteria. By Act No. 15 of 1995, subsequently reinforced by the constitutional amendments of 2000 in relation to Article 161, the Leader of the Opposition is required to submit a list of six persons, not unacceptable to the President, after meaningful consultations with the other non-governmental political parties in the National Assembly. However, if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge.
Having reviewed the legislative changes that have been made in the appointment of the Chairman of the Elections Commission as well as the objectives of such changes, the CCJ concluded as follows:
We agree with the courts below that a purposive approach to the interpretation of the Article is appropriate. We agree too that the evolution of Article 161(2) has been characterised by a significant and deliberate shift from exclusivity and unilateralism, on the part of the President, to inclusion and consensualism. This element of inclusion secures the participation of the Leader of the Opposition in the process by which the Elections Commission Chairman is selected and appointed. (Paragraph 23)
The CCJ felt that while Article 232 is clear on what constitutes “meaningful consultation”, it is not so clear what process should be followed to ‘accommodate the spirit of consensus that must prevail between the President and the Leader of the Opposition’. The court considered that the most sensible approach is, before a list is submitted, for the Leader of the Opposition and the President to communicate with each other in good faith, and perhaps even meet to discuss, eligible candidates for the position of Chairman. The CCJ further stated that the Constitution anticipates that the Leader of the Opposition and the President ‘conduct themselves in a reasonable and responsible manner, eschew partisanship and seek the best interests of the Republic and the Guyanese people’.
In the CCJ’s view, the words ‘not unacceptable’ suggest that an onus is placed on the President not to find a nominee unacceptable and that there should be ‘some good reason on objective grounds otherwise it would frustrate the proper working of the Constitution, defeat the intention behind the amendment to Article 161(2) and pave the way for unilateral presidential appointment’. The court further commented that unilateral appointment by the President could hardly be an option if the Leader of the Opposition demonstrates a willingness to engage in good faith in the selection process.
The CCJ concluded as follows:
Given the imposition on the Leader of the Opposition of criteria that were not sanctioned by the Constitution and the absence of cogent reasons for deeming unacceptable the candidates and lists provided, we have no choice but to conclude that the process that was followed in the appointment of Justice Patterson was flawed and in breach of Article 161(2). To the extent that this judgment contradicts anything that was stated in Gaskin, the latter is overruled. (Paragraph 30)
The Gaskin case involved the local courts being asked to interpret Article 162(2) after the President’s rejection of the Opposition Leader’s second list of nominees. The case centred around four key questions, including whether the President should provide reasons for rejecting a list submitted by the Opposition Leader. The Chief Justice had ruled that, while there is no legal requirement for the President to do so, modern thinking on decision-making and actions would suggest that the President should provide reasons for rejecting some of the names on the list or the entire list. This was necessary to enable the President to move to the next stage and apply the proviso to Article 161(2). In this regard, the CCJ commented as follows:
The problem with the Gaskin decision is that it proceeded on a premise, surrounding the submission of the list by the Leader of the Opposition, that renders the Constitution unworkable in practice. The court did not work into the process any opportunity for the President to be able to signal, before the formal presentation of the list, that a particular listed nominee was, for good reason, not acceptable to the President. (Paragraph 11)
In her concurring decision, Justice Rajnauth-Lee, having traced the legislative history surrounding the appointment of the Chairman of the Elections Commission, concluded as follows:
The inclusive approach captured by Article 161(2) envisions the appointment by the President of a Chairman who commands the trust and confidence of the winners and the losers of an election. There is a clear paradigm shift from absolute and unilateral power vested in the President to a consensual process enshrined in the Constitution…Rishi Persaud JA in the Guyana Court of Appeal articulated it thus: “There was a clear shift from unilateralism to one of consensualism”. This is the spirit and intendment of Article 161(2) and it is the yardstick against which the course of conduct leading up to Justice Patterson’s appointment to the chairmanship of the Elections Commission should be measured. (Paragraph 47)
