A CONSTITUTIONAL CRISIS WILL BE CREATED IF THE COURT’S DECISION IS NOT RESPECTED

February 5, 2014, By KNews, Filed Under Features/Columnists, Peeping Tom, Source

I do not understand how the Constitution can trigger a constitutional crisis. A constitutional crisis exists where the highest law of the land does not provide a remedy for a particular situation that requires a constitutional remedy. It is unheard of for the Constitution itself to trigger its own crisis.

Guyana has had constitutional crises before.  In 1990, general elections were constitutionally due. However, these elections could not have been held because the Voters’ List needed to be sanitized. A decision was taken to have a new list prepared. This entailed a delay in the holding of elections. However, since according to the Constitution elections had to be held within a specified time, a constitutional crisis loomed because there were no provisions in the Constitution to deal with this situation.

The problem was solved by resort to a legal principle of constitutional law known as the doctrine of necessity. Under this doctrine, acts which would otherwise be considered unlawful are given lawful protection. It is this doctrine that was used to extend the life of the National Assembly until it was eventually prorogued for the historic 1992 elections.

The High Court of Guyana recently ruled that it is unlawful for the National Assembly to reduce the Estimates of the Minister of Finance. In attempting to justify their refusal by some parties to accept and respect this decision, claims have been made that if this decision by the High Court is adhered to, it will lead to a constitutional crisis. The argument is that if the opposition parties refuse to approve the Budget, as is their right to do, it will trigger a constitutional crisis because fresh elections will have to be held.

It is hard to fathom the logic of this argument. The Constitution allows for the opposition to approve or disapprove the Budget. If they refuse it may lead to new elections. So where is the Constitutional crisis?  Since when is the holding of elections a constitutional crisis?

If the same opposition parties decide that they no longer have confidence in the administration, they can exercise the option of moving a motion of no-confidence in the Cabinet. While the Constitution does not dictate that the government should resign, by virtue of a constitutional convention the government is expected to resign.  But this option of moving a motion of no-confidence is not seen as triggering a constitutional crisis. So how can the disapproval of the Budget, which forces the government to go back to the polls, be deemed a constitutional crisis?

The opposition parties feel that they should have the right to amend the Estimates of Expenditure and because the Court has ruled that they do not, they are suggesting that if they only have the power to approve or disapprove the Estimates, then exercising the latter will lead to a constitutional crisis.

This argument has no merit, because the power to approve or disapprove is incontestably granted by the Constitution itself. And the Constitution cannot create a crisis for itself.

Right now there is an ongoing constitutional crisis. It concerns the appointments of the Chief Justice and the Chancellor. The Constitution provides that there must be agreement between the President and the Leader of the Opposition on the appointment of persons to these two offices. The Constitution is however silent on what happens if there is no agreement. As such, there is an impasse. But this impasse has not ended the rule of law in Guyana. So even when there are situations for which the Constitution provides no remedies it does not trigger a situation that affects the operations of the rule of law.

The opposition however wishes to assert that its inability to amend the Budget will lead to fresh elections. Last year, the President of United States locked horns with the US Congress over certain financial proposals. This did not create a Constitutional crisis. It threatened a fiscal cliff and there was a shutdown of federal institutions and services for a few weeks. In the end, laws were passed to regularize the situation.

The same thing will happen if the opposition parties refuse to approve the Budget, and if the time passes in which the Budget is supposed to be approved. It will create a fiscal cliff in Guyana and a temporary shutdown of certain government services. This is no constitutional crisis. It is a crisis of legislative failure to agree, something that the Obama Administration has experienced.

The real constitutional crisis will be created by the failure of the Speaker to comply with the decision of the Court. The two greatest threats to constitutional rule are legislative and executive annulment of a judicial decision. The three arms of the State are supposed to exist in comity. The Constitution itself is predicated on the separation of power and the Constitution grants certain powers of superintendence to the Courts.

If the decisions of the Courts are disrespected or disregarded by the executive arm of the government, this represents an act of executive annulment and if the legislature does this, it is an act of legislative annulment.

This renders the judiciary otiose and the relationship between the three arms of government incommodious. This is the real constitutional crisis, one that will be triggered if the legislature refuses to adhere to the decision of the Court.