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Commentary: Ruling by Guyana's chief justice violates the constitution
Published on February 5, 2014 Email To Friend    Print Version

By Rickford Burke

Last Thursday, Guyana’s Chief Justice Ian Chang ruled that the Parliament cannot cut a budget presented by the government because the Guyana Constitution mandated the “government” to present the budget to the Parliament. Guyana has a minority government. The opposition has a majority of seats in Parliament. The government has been attempting to delegitimize the Parliament by using the courts to emasculate its powers. Consequently, it is mired in ongoing conservancy with the Parliamentary majority and Speaker.

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Rickford Burke is the President of the Caribbean Guyana Institute for Democracy (CGID
The chief justice cites Article 171(2)(a)(ii) and Article 218 of the Constitution as the raison d’être of his decision. Article 171(2) states that “Except on the recommendation or with the consent of the Cabinet signified by a Minister, the Assembly shall not -- (a) proceed upon any Bill (including any amendment to a Bill) which, in the opinion of the person presiding, makes provision for any of the following purposes -- (ii) for imposing any charge upon the Consolidated Fund or any other public fund of Guyana or for altering any such charge otherwise than by reducing it;…” The latter provision dismantles a main pillar of Justice Chang's argument. It explicitly grants exclusive authority to the National Assembly to reduce (or cut) estimates of expenditures to be charged to the Consolidated or any other "Public" Fund.

Article 218: (ii) states that “When the estimates of expenditure (other than expenditure charged upon the Consolidated Fund by this Constitution or any Act of Parliament) have been approved by the Assembly a Bill, to be known as an Appropriation Bill, shall be introduced in the Assembly, providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein."

The learned chief justice held that under part (ii) of the above Article, the Parliament is mandated to only approve or disapprove the estimates presented by the minister of finance but cannot amend, as in so doing such amended budget then becomes the Budget of the Parliament and not the minister. But the chief justice’s reasoning and ruling are fatally flawed. There is no such mandate in the Article. To construe the Article in this light would be an over-imaginative stretch.

The term “When the estimates of expenditure… have been approved by the Assembly” in Article 218 does not impose a mandate to approve or to disapprove. It merely dictates what parliamentary procedure should ensue after a vote of approval. It has no bearing on the parliamentary mechanics or modalities of the “process” of consideration of the estimates.

Clearly, Parliament has to vote on the Budget; be it an approval, disapproval or approval with adjustments. At the end of this process the Budget becomes the estimates approved by Parliament by a majority vote. Once this vote is cast, the Budget becomes the law as enacted by Parliament. Not law enacted by the “opposition majority” in Parliament or law enacted as presented by the minister. To advocate such is to engage in irrationality.

Justice Chang’s decision suggests that, consequent upon a parliamentary vote, the Budget is lawful and maintains a “government Budget” if, and only if, it is rubberstamped and approved. But if it’s altered by the Parliamentary majority then it becomes the Budget of the National Assembly, not the government’s Budget, and therefore “unlawful.”

The intrinsic and imperceptible reasoning of the chief justice suggests that although the opposition constitutes the majority in Parliament, any vote exercised by that majority is not an ultimate vote by the entire Parliament per se but remains a vote by and of the “opposition.”

If this be true according to the reasoning of the learned chief justice, it therefore follows by legal construction that the government by virtue of its minority nature could be unconstitutional as it cannot perform the functions envisaged in the constitution. And the opposition, by nature, is in a position to but cannot perform the functions of the government. What therefore looms is a constitutional crisis. This is an argument I made at the commencement of the government’s term.

However, the aforementioned arguments notwithstanding, there are two fundamental questions of law that arise in this case. (1) Did the plaintiff have standing to bring the suit? And (II) Does the court have jurisdiction in the matter. The answer is NO!

First, this matter was improperly before the court. The lawsuit was brought by the attorney general of Guyana, Anil Nandlall, who himself is a Member of Parliament. By virtue of such membership of the House, Nandlall has no standing to prefer this action, personally or as chief legal officer of the state. Effectively, the attorney general sued himself and the state of Guyana sued itself. Although he could not have proved injury to himself or the state, causation or legitimate redressability of which the courts can legitimately sanction, the chief justice inappropriately entertained his motion.

Second, the chief justice’s ruling is ultra vires the constitution and should be completely ignored by the legislative branch as the Guyana constitution, like any other Westminster or Westminster-style constitution, singularly confers the legislature with powers to make its own rules. The Parliament is a separate and co-equal branch of government of the state of Guyana whose rules are self-determined and constitutionally protected from judicial review.

This separation of powers doctrine is established, settled, enforceable and as ancient as the jurisprudence of constitutional interpretation. The attempt to subvert this doctrine in Guyana and the British Commonwealth is designed to sacrifice the constitution at the altar of partisan, political expediency and undermine the democratic process by silencing the elected representatives of the people.

It is ineffable that the chief justice entertained this meritless, ill-conceived and illegitimate suit. His ruling signifies a most reprehensible and obtuse form of jurisprudential activism. No appellate court should allow his ruling to contend as precedential law as it erroneously grants that a Member of Parliament can sue the Parliament, not for any constitutional injury, harm or unjust act done to that member, but on a mere disagreement on how the majority has voted. In essence, the chief justice has set the court up as a veto mechanism to subjugate the power of the Parliamentary majority vote.

The chief justice has erred terribly on the fundamental constitutional questions inherent in the instant matter. Clearly his ruling is repugnant to the Guyana constitution and is a refutation of established constitutional jurisprudence, as well as the separation of powers and the absolute parliamentary privilege doctrines.

The ruling is an abusive interference into the affairs and workings of the legislative branch of government. He has no power to do so. If the parliament, a body that constitutes the representatives of the “people” cannot cut the budget, according to the chief justice, then what is its purported role according to this learned gentleman? A rubber stamp?

It appears that this decision has no basis in constitutional jurisprudence but apparently in politics. It is a most appalling judicial overreach and deliberate perversion of the intent of the framers of the constitution. The court is not a law-making body. Neither does it have powers to act outside of its remit or jurisdiction. The chief justices acted way outside of his jurisdiction. His action is extra-constitutional and therefore, is reversible. It must be reversed lest it results in the degeneration of the Commonwealth and Caribbean jurisprudence.

The parliament should never have even responded to this action to begin with! In doing so it conceded jurisdiction to the judicial branch where there was none. It must appeal this indefensibly illogical decision all the way to the Caribbean Court of Justice (CCJ) if necessary, and must completely ignore same in the interim.
 
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Comments:

Claude Wharton:

I raised this very issue in a commentary on Facebook, and have been arguing my case with someone who does not agree with my opinion.Without the Legal knowledge with which this contributor has argued his case, it clearly supports my argument that the Supreme Court is clearly trying to undermine the Legislative Process. Do not know who this Nandlal Person thinks he is. The AG in any democratic country is supposed to uphold the law, not engage in partisan Anyone with half a brain can see what the Minority Government is doing. If they loose the argument in the Assembly, take the matter to Court and their hand picked CJ will rule in their favour, submitting half-baked reasoning to justify his case.I look forward to the day of reckoning when these Kleptomaniacs will be run out of power, and incarcerated for their economic crimes


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