ANOTHER MASTERCLASS FROM JUSTICE CHANG

January 30, 2014, By KNews, Filed Under Features/Columnists, Peeping Tom, Source

Yesterday was an historic day in the struggle to protect the Constitution of Guyana from being violated by the country’s opposition parties. And rightly so. It was the judiciary, the ultimate guardian of the Constitution that helped preserve important principles of constitutionalism.

The Chief Justice has made a most significant ruling. It has been long awaited. Had it not been issued, it would have further emboldened an opposition and may have led to dire consequences for constitutional rule and the rule of law.

The Courts have once again demonstrated its independence and fearlessness. It has ruled on an important constitutional issue. And while there have been soundings of an appeal, the grounds upon which such an appeal are said to be based are facetious.

One opposition leader has signaled a possible ground of appeal. He has argued that the Committee of Supply holds “the power of the purse”. If this is the principal ground upon which the appeal is going to be based, then it would better advised that any appeal be shelved because there is no basis in the argument that because the Committee of Supply has the power of the purse, a power established by convention, that this amounts to it being able to cut or amend the Budget.

The Constitution is the supreme law of the land and Guyana’s Constitution, as now interpreted by the Court, prohibits the legislature from cutting or otherwise amending the Estimates. It however allows the legislature to either approve or not approve, in its entirety, the Estimates.

This, in fact, is a far more advantageous power than simply having the power to amend Estimates because it allows the opposition with its one lead majority to refuse to pass the Appropriations Bill.

When that happens the Minister of Finance has to go back and amend his Budget. The Court has ruled that the legislature cannot do this. It is for the Minister to go back and continue, as the need arises, to go back until such time as an Appropriations Bill suitable to the legislature, is passed.

The ruling of the Court, unlike what the opposition party feels, does not take away from the Committee of Supply, the power of the purse. In fact in reinforces that power but argues rightly that it is for the Minister to decide the size of the purse and then to seek approval from the legislature for that purse. It is not for the legislature to decide to add or to subtract from what is inside the purse.

The opposition parties must not view yesterday’s ruling as a defeat from them. Guyana exists under a system of constitutional rule and any victory for the Constitution is a victory against arbitrary and absolute power. The reason for constitutional rule is precisely to constrain arbitrary and absolute power.

The rules of the Constitution also protect the opposition in that governments cannot do things that are ultra vires of the Constitution.
For example, there was once a court ruling to the effect that while no one has an absolute right to be granted a broadcast license, applications not considered in a timely manner constitute a violation of freedom of expression.

There is going to come a time, most likely soon, when the PPPC will regain its majority in the National Assembly and therefore it is the opposition parties’ advantage that the Court have asserted in yesterday’s ruling that the Court can rule on the constitutionality and lawfulness of legislation.
There may come a time too when an opposition party may win an election. But in all probability the opposition will win the Executive but like the case of the PPPC today, not have a majority in the legislature. It is doubtful whether any opposition party can gain 50 per cent of the seats in the National Assembly, in the distant future. The opposition’s best chances of gaining Executive Office remain via a minority government.

If that happens, will the opposition wish to see their own Budget being cut and slashed as they have unlawfully done with the 2012 Budget? Would they wish to become then a victim of what they are doing now to the PPP?
The opposition parties were always flirting with danger when they argued that the parliament was independent and therefore not subject to the supervision of the judiciary.

When the opposition suggested this they seemed to be unaware of the fact that the very opposition parties had in the past mounted challenges to the constitutionality of certain legislative acts such as the extension, at one time, of the life of the Ethnic Relations Commission.

That argument therefore about the independence of parliament can backfire on the very opposition.

Justice Chang has delivered yet another master class. Guyana should be proud that we can produce jurists of this quality. This is solid ruling and one which this columnist predicts will be affirmed by the Court of Appeal and whichever other forum in which it may be challenged.

There are no losers in this ruling. Everyone has won.