Whenever, Constitutional doctrines are ignored and are trampled upon and the Constitution is regularly violated by the National Assembly, the Attorney General (AG) has a responsibility to take the issue to the Court as it is the Executive’s responsibility which mandates it to ensure that the rule of law is maintained and the Constitution is observed, both in its letter and in spirit.
AG Chambers’ role
AG and Minister of Legal Affairs Anil Nandlall stated that Government has had the cause to go the route of the courts during the course of 2012 to challenge actions taken by the Opposition, in Parliament in particular, and this has attracted some attention and been the subject of criticisms and comments by political parties.
Minister of Legal Affairs, Anil Nandlall
“The Government’s position is simple. We have Executive responsibility to administer the affairs of the State. Included in those responsibilities are upholding the Constitution of the country, maintaining order and ensuring that the rule of law prevails in the country,” he stated. The Minister pointed out that when Government Ministers took the Oath of Office they all pledged to uphold the Constitution of the land.
The AG is the Legal Advisor of the State and all its organs and the Legal Advisor to His Excellency, the President. He is also the national defender of the Constitution and, therefore, it is his responsibility to take such actions necessary when the rule of law comes under threat and the Constitution is violated.
If the Constitution is despoiled by any agency of the State, then the responsibility of the AG is to approach the court if it is necessary to do so, to seek redress against that Constitutional violation.
AG Nandlall stated that Parliament enjoys no special role in this configuration, although it enjoys some amount of functional autonomy, in the manner in which it regulates its own process and procedures. However, this freedom is subject to the Constitution.
Guyana’s system holds the Constitution as the supreme power, not Parliament, unlike the English system. This must be clearly understood, the AG explained, “It is the Constitution that says expressly, that Parliament has a freedom to regulate its own procedures subject to the Constitution itself.”
Parliament being a special institution and a powerful one in the state apparatus, has been where the people’s representatives meet to discuss policies, to scrutinise actions, to hold the Executive responsible for spending of public funds, to ensure that public funds are spent in the interest of the public and more importantly, to make laws for the country. “Because of those very fundamental and cardinal functions which Parliament has to perform a fortiori one would expect that a greater level of responsibility, a higher level of conduct, a greater compliance with the Constitution would be done by Parliament as it discharges its various functions,” AG Nandlall said.
He clarified that the greater the power, the greater the responsibility, “and parliament has great powers, and therefore it has great responsibilities to discharge, and in every one of its actions, it must be careful, it must be cautious, it must be vigilant, to ensure that it doesn’t violate the Constitution, it doesn’t act outside of its powers, it doesn’t abuse its privileges and powers and that it must always act in what it considers to be the best interest of the welfare of Guyana and the Guyanese people,” he contends.
The AG emphasised that Parliament cannot be, and is not a forum for pursuing personal vendettas, political grievances and scores, or boosting egos, and it is unfortunate that these are some of the deplorable features which have been seen emerging from the 10th Parliament.
“What we saw was a never-ending effort to encroach on constitutionally distributed Executive responsibility by the opposition, and that is where they fall in conflict with the Constitution. The Constitution clearly earmarks and outlines limits of powers to be exercised by Parliament and the Executive government. You find a perennial attempt year-long, by the Opposition, to trespass on the domain and province of functional responsibilities of the Executive, and the Constitution specifically forbids that,” he declared.
Constitutional violation
Citing the presentation of the annual National Estimates and Expenditures (National Budget) he explained that the Constitution mandates the Executive to bear all responsibility and exclusive responsibility in relation to the financial affairs of the state.It also confers upon Parliament an oversightfinancial responsibility to ensure that the executive discharges and manages the financial affairs of the state in a proper, accountable and transparent fashion.
The AG emphasised that the oversight role of Parliament is to be vigilant and to scrutinise the Executive’s spending, “Not to arrogate unto itself responsibilities to manage the executive affairs of the state, and that is what happened in the budget cut matter.”
AG Nandlall pointed out that the Opposition reduced the estimates for several agencies, a power not granted by the Constitution, and followed this up by providing their own estimates of a dollar in many of the instances in which they reduced the estimates.
“That is where they fell into constitutional error because they violated a responsibility which the constitution resides exclusively with the executive and by doing that they have transgressed the doctrine of separation of power,” the AG pointed out.
He observed that what is even more unfortunate is although the Chief Justice has pointed this out in a 19 – page ruling, “its impact and effect is not appreciated by the opposition, and what is even more unfortunate is that this lack of appreciation comes primarily from the lawyers in the opposition. They are leading the charge and the others are simply following and they are supposed to be the ones who should be explaining what that ruling meant and what it says. Unfortunately, we hear those very ones either distort the ruling or from their utterances have not comprehended the effects, purport and nature of the pronouncements made by the CJ.”
In this respect, the Attorney General expects a repetition of the Opposition’s actions when the National Budget for 2013 is presented based on the statements made inside and out of Parliament.
Parliamentary Motions and Legal issues
In this regard, Minister Nandlall singeled out the Motion by the Opposition regarding Government’s failure to deposit monies into the Consolidated Fund that are generated from the Lotto engagement. The Opposition’s claim was that it is unlawful to retain the proceeds from the Lotto fund in a special account and that those monies should go into the Consolidated Fund. They passed a motion to that effect.
“They also went to the courts, and I have been encouraging them: do not take legal problems to the Parliament, take them to the court,” the AG said observing that the court had ruled and dismissed the case. “They had eminent Senior Counsel which they retained, and they sued the Attorney General and they have lost that case. I am waiting for the judge to give her written ruling and then I will circulate it to the press.”
AG Nandlall lamented the fact that many similar things are being raised in the form of motions. “They are asking you to do things that are not permitted by the law and in fact contradict the law. The Lotto funds can be deposited in a separate account and they want us to put it where the law says it must not go, and that is the Consolidated Fund.”
Pointing to the Motion on the Marriot Hotel, Nandlall said Finance Minister Dr. Ashni Singh was accused of wrongfully and unlawfully appropriating state property and giving it to NICIL to be transferred over to the new company that will own the Marriot hotel.
AFC Leader Khemraj Ramjattan has accused NICIL of unlawfully and unconstitutionally retaining funds that should go into the Consolidated Fund, and he cites in support of his arguments several provisions of the Financial Management and Accountability Act and of the Constitution which he claims has been violated.
“Clearly his case is one of a legal one. The wrongs that he is complaining about are all legal wrongs. Mr. Greenidge (Carl) in a similar Motion, passed a resolution that all the NICIL money must go into the Consolidated Fund,” Nandlall said.
He reiterated that all issues being debated in Parliament are things that touch and concern violation of the law. The AG questioned, “Why is it after 20 years, they have not filed a single action. The one that they filed against the lotto fund after 20 years they have lost. If Mr. Ramjattan is so convinced that Dr. Singh (Ashni) has violated the law, that NICIL has violated the Constitution, as a lawyer, he must know if there is a violation of the law you must go to the court for redress. Parliament cannot grant you a legal remedy in respect of a complaint of a wrong committed in law. The forum you have to go to is the court,” he re-emphasised.
The AG again lamented the fact that the Opposition’s refusal to take Court action and continued engagement in futile antics in the National Assembly continues to cost taxpayers $1.7 M per sitting.
On the issue of the reverse complaints that Government is breaching the Constitution, he said, “When I complain that they breach the Constitution, I take them to the court. So if we are breaching the Constitution, then take us to the court. That is where the issue has to be resolved, and that is where we will get direction as to who is right and who is wrong so that the parliament can function in a far better way.”
On the issue of the Motion regarding Home Affairs Minister Clement Rohee, the AG pointed out that the Constitution clearly states, that Minister Rohee owes an Executive responsibility to Cabinet individually, and Cabinet owes a collective responsibility to the Parliament and therefore, “the Parliament has no basis to exercise any form of disciplinary action over Minister Rohee in relation to the performance of executive functions.”
“These matters of law are completely lost upon the Parliament. If Minister Rohee misbehaves in Parliament that is a different matter, Parliament has jurisdiction to discipline him. But Parliament cannot hold him responsible or try to censure him for the discharge of, or lack of discharge of his executive responsibility which he doesn’t owe to the Parliament; which he owes to his boss, the President. All these fundamental but elementary constitutional precepts and concepts are lost upon the Parliament,” the AG said.
source
