CJ denies Granger’s request to stop Gov’t spending - says use of Statement of Excess a matter for National Assembly

February 13, 2015, Source - Guyana Chronicle

CITING precedent in other cases and quoting extensively from Guyana’s Constitution, the Chief Justice (ag), Ian Chang, in 36 page, detailed his refusal of Brigadier (rt’d) David Granger’s application for a Conservatory Order to stay further Government spending during 2015.

His decision was delivered yesterday in the High Court after several hearings, since the action was filed on December 11, 2014.

Chang ruled that Granger’s application to stop Government spending had no grounds.

NO GROUNDS
The legal challenge advanced by the main Opposition Leader called for a Conservatory Order to stay all spending or any further spending by Finance Minister, Dr. Ashni Singh, or any other Government minister, on programmes not authorised by the National Assembly until the hearing and determination of the matter.

According to Chang, the Constitution provides for spending in the first four months of the year, until a Budget is passed, specifically spending of one twelfth of the approved sum in the previous year’s budget.

Chang said, “A conservatory order must now (in 2015) relate strictly to future constitutional or statutory spending excesses and not past excesses of the Appropriation Act 2014. If granted in the form as prayed for, it would in effect be an injunction against governmental spending (though limited) permitted by the Constitutionand the Financial Management and Accountability Act rather than a conservatory order against non-approved spending for the past financial year 2014.”

He added that the court has no jurisdiction to prohibit or restrict the exercise of any authority conferred by the Constitution or an Act of Parliament, since to do so would be to violate the doctrine of separation of powers which indubitably inheres in the Constitution of Guyana.

Acting under Article 219 (1) of the Constitution (mentioned in Article 217 [1] (c) of the Constitution), Parliament enacted the Financial Management and Accountability Act 2003 which empowered the Minister of Finance to authorise the limited withdrawal of moneys from the Consolidated Fund for the sole purpose of meeting expenditure necessary to carry on the services of the Government until the expiration of four months from the commencement of that financial year or the coming into operation of the Act, whichever is earlier.

The Chief Justice also said, “That the Defendants were in breach of the prohibition contained in Article 217 (1) (b) by the expenditure of money unauthorised by the spent Appropriation Act of 2014 is not a proper basis for fear that they will exceed the limits of their authority to spend money conferred by Article 219 (3) of the Constitution or the provisions of the Financial Management and Accountability Act 2013.”

Section 217 of the Constitution provides: “(1) No money shall be withdrawn from the Consolidated Fund except – (a)To meet the expenditure that is charged upon the Fund by this Constitution or by an Act of Parliament; or (b) Where the issue of those moneys has been authorised by an Appropriation Act; or18(c)Where the issue of those moneys has been authorised under article 219.”

Chang reiterated that the call for Government spending relates to 2015 and, as such, deemed Granger’s application as “misconceived” and as one that must be dismissed.

SECOND CALL
The Opposition Leader also called for the courts to pronounce on the constitutionality of the combined Opposition’s disapproval of sums in the 2014 Budget, as well as a declaration on the restoration of those monies by the Finance Minister.

Budget 2014 saw the slashing of $37.5B from the allocations of $220B by A Partnership for National Unity (APNU) and the Alliance For Change (AFC).
The Finance Minister subsequently restored partial sums slashed, via a financial paper – a statement of excess – valued $4.6B.

The Chief Justice agreed that Section 217 of the Constitution was breached, since it makes clear that there shall be no expenditure without Parliamentary approval.

However, he acknowledged that Section 218 (3) provides an opportunity for a breach of Section 217. “The Statement of Excess may have a place as a curative means in the parliamentary practice and procedure ,” Chang said.

On that note, he added that the use of the Statement of Excess is a matter for the National Assembly.

“Being out with the Constitution and a matter of the internal affairs of the National Assembly, the curative solution is not a matter for judicial interference if the excess expenditure was advertent (willful),” the Chief Justice concluded.

AGREED
Senior Counsel Rex Mc Kay, Attorneys-at-Law Hewley Griffith, Lawrence Harris, Michael Somersaul, Joseph Harmon, James Bond, Llewlyn John and Bettina Glasford and Basil Williams represented Granger.

Williams, after Chang’s ruling was delivered, agreed that the Chief Justice could not order spending in 2015 to be stopped.

Speaking to the media, he said, “In terms of the Conservatory Order, he is saying that to apply it in 2015, he could not do it because the constitutional provision allows for expenditure for the first four months, so he could not give a order to stop the spending.

“…as we enter 2015, they (the Government) could spend, but only one twelfth of the amount. It is a good decision for us because he tells us that the Minister of Finance cannot spend above.”

He stressed that the law is clear on the use of public funds.

The primary defendant in the matter was Finance Minister, Dr Ashni Singh, who was represented by Senior Counsel Ashton Chase represented and Attorney General and Minister of Legal Affairs, Anil Nandlall.

Nandlall also commented on the ruling after it was handed down.

He stated that the two important aspects of the ruling were that Granger’s application had no grounds and while there was a breach of Section 217 of the Constitution, Section 218 (3) provides a curative mechanism to address the violation.

The Attorney General stressed that Government is not in doubt over its limitations on spending.

“We agreed that there is a prescribed formula for spending and that we have faithfully complied with that formula. Government is not in doubt on limitations…we have never contended that we have a power to spend at large,” he said.

Additionally, House Speaker Raphael Trotman was also named as a defendant in the matter and was represented by AFC leader and Attorney-at-Law, Khemraj Ramjattan. -- (Photo by Vishwanauth Narine)