Full decision

2012          No. 216-W          DEMERARA

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE

CIVIL JURISDICTION CONSTITUTIONAL/ADMINISTRATIVE DIVISION

In the matter of the Constitution of the Republic of Guyana.

-and-

In the matter of Articles 1, 5, 8, 50, 51, 89, 99, 106, 110, 111, 117, 118, 120, 161, 212 A, 212 B, 212 C, 212 D, 212 E, 212 F, 218, 219, 222 AND 222 A, of the Constitution of the Co-operative Republic of Guyana.

BETWEEN:

ATTORNEY GENERAL OF GUYANA.

Applicant

-and-

1. RAPHAEL TROTMAN

In his capacity as Speaker of the National Assembly.

1. DAVID GRANGER

In his capacity as Leader of the Opposition.

1. DR. ASHNI. K. SINGH – in his

capacity as Minister of Finance

Defendants Jointly and severally.

BEFORE:

HON. MR. JUSTICE IAN CHANG, C.C.H, S.C – CHIEF JUSTICE (ag.)

Mr. Mohabir A. Nandlall, Mr. Seenauth Jairam S.C, with Ms. Sita Ramlal and Mr. Naresh Hamanan for the Plaintiff.

Mr. Roysdale Forde, Mr. Khemraj Ramjattan, Mr. Nigel Hughes and Mr. Christopher Ram for the 1* named Defendant

Mr. Rex Me Kay S.C, Mr. Sase Narain S.C, Mr. Basil Williams, Mrs. Deborah Osman-Backer, Mr. Robert Corbin, Mr. Joseph Harmon, Mrs. Bettina Glasford, Mr. James Bond and Mr. C.M.L John for the 2^nd named Defendant.

Mr. Ashton Chase S.C for the 3^rd named Defendant.

DECISION

On the 4^th June 2012, by way of generally indorsed writ, the Attorney – General brought this action against the Speaker of the National Assembly, the Leader of the Opposition and the Minister of Finance, jointly and severally, seeking the following reliefs:

1. 1.     A Declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012 by the Committee of Supply of the National Assembly on Wednesday the 25^th April 2012, in respect of Agency Code 01. Office of the President Line – Item Oil Administrative Services. Account Code and Description – 6321 Subsidies and Contribution to Local Organisations from GYD$918,719,000 to GYD$707, 149,000 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect.
2. 2.     A Declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012, by the Committee of Supply of the National Assembly on Wednesday the 25^th April 2012, in respect of Agency Code 01. Office of the President Line Item 012. – Presidential Advisory (Cabinet and Other Services). Account Code and Description 6116 Contract Employees from GYD$296.959.000 to GYD$147.000.000 and Account Code and Description 6284 – Other from GYD104,243,000 to GYD$24,200,000 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect.
3. 3.     A Declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012, by the Committee of Supply of the National Assembly on Wednesday the 25^th April 2012, in respect of Agency Code 01, Office of the President, Line Item Oil Administrative Services Account Code and Description 1212000 Information Communication Technology from GYD$6,750,000,000 to GYD$6,580,000,000 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect.
4. 4.     A Declaration that the reduction of the Estimates of the Revenues and Expenditure of Guyana for the year 2012

by the Committee of Supply of the National Assembly on ‘ Wednesday the 25^th April 2012 in respect of Agency 01, Office of the President, Line Item Oil Administrative Services, Account Code and Description 1700100 – Minor Works from GYD$95,000,000 to GYD$1 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null. Void and of no legal effect.

1. 5.     A Declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012 by the Committees of Supply of the National Assembly on the 24^th April 2012 in respect of Agency Code 01, Office of the President, Line – Litem Oil, Administrative Services, Account Code and Description – 6321 3400700 Guyana Information News Agency National Communications Network from GYD$15,000,000 to GYD$1 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect
2. 6.     A Declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012 by the Committee of Supply of the National Assembly on Wednesday the 25^th April 2012 in respect of Agency Code 11, Guyana Elections Commission, Line – Item 112, Elections Administration, Account Code and Description

6293     Refreshment and Meals from GYD$53,700,000 to GYD$27,000,000, and Account Code and Description

6294         - Other from GYD$902,800,000 TO GYD$403,000,000, is an abrogation, unconstitutional, unlawful, null. Void and of no legal effect.

1. 7.     A Declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012 by the Committee of Supply of the National Assembly on Wednesday the 25^th April 2012 in respect of Agency Code 02, Office of the Prime Minister, Line – Item 021, Account Code and Description 6321 – Guyana Power and Light from GYD$6,000,000 to GYD$5,000,000 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect.
   1. 8.     A declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012 by the Committee of Supply of the National Assembly on Thursday the 26^th April 2012 in respect of Agency Code, Ministry of Finance, Line-Item 031 Ministry Administration, Account Code and Description 6321- subsidies and contributions to local Organisations from GYD$6,724,352 to GYD$6,499,933 thereby reducing the budgeted allocations for the Ethnic Relations Commission from GYD$99,000,000 to GYD$1, the Customs Anti-Narcotic from GYD$20,000,000 to GYD$1 State Planning from GYD$105,000,000 to GYD$1 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect.
   2. 9.     A declaration that the reduction of Estimates of the Revenues and Expenditure of Guyana for the year 2012 by the Committee of supply of the National Assembly on Thursday the 26^th April 2012 in respect of Agency Code

3,     Ministry of Finance, Capital Expenditure, Line-Item 031 Ministry Administration Accounts Code and Description – 340000 Low Carbon Development from GYD$18,394,650 to GYD$1 is an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect.

10. An  Order vacating or setting aside the reduction of the Estimates and expenditure of Guyana for the year 2012 put and carried in the Committee of Supply of the National Assembly on the 25^th and 26^th days of April 2012 in respect of the matters more fully set out in Schedule A hereto attached.

1. 11.         That the third-named defendant be at liberty to make advances/withdrawals from the Contingencies Fund, pursuant to Article 220 of the Constitution for the purpose of restoring the funds to the Agencies listed in Schedule A hereto attached as originally budgeted in the Estimates of the Revenues and Expenditure of Guyana for the year 2012.
2. 12.         Such further or other relief as this Honourable Court deems just.
3. 13.         Costs.”

PRELIMINARY ISSUES

Before any hearing had commenced in the substantive matter, the court, suo motu, struck out the 2^nd and 3^rd named defendants as defendants and dismissed the plaintiffs case against them since, on the pleadings belatedly filed, the plaintiffs cause of action against them was based on words spoken by them before the Assembly or for motions brought by them therein. No doubt, as members of the Assembly who had played such an active part in the work of the Assembly, they were persons with an interest in the subject matter of these proceedings. But, Article 172 (2) of the Constitution procedurally debarred the institution of curial proceedings (criminal or civil) against them for words spoken by them before the Assembly or for moving motions therein (inter alia).

While it is common and usual to say that Article 172 (2) immunizes members of the Assembly from curial proceedings, since Article 172 (2) expressly prohibits the institution of curial proceedings against them, the institution of any such proceedings against any member of the Assembly is a legal nullity and therefore the need for curial immunity is otiose and unnecessary.

Article 172 provides:

“(1) Subject to the provisions of paragraphs (2), (3) and (4), Parliament may be law determine the privileges, immunities and powers of members of the National Assembly and the members thereof

(2) No civil or criminal proceedings may be instituted against any member of the Assembly for words spoken before or written in o report to the Assembly or to g Committee thereof or by reason of any matter or thing brought by him therein bv petition, bill, resolution, motion or otherwise.”

Clearly, with regard to Article 172 (2), since curial proceedings against a member of the Assembly for matters stated therein are prohibited, the issue of curial immunity does not arise and the question of waiver of such immunity, a fortiori, also cannot arise.

It does appear to the court that the words “civil proceedings” within the context and for the purpose of Article 172 (2) do embrace public law proceedings and are not confined to private law proceedings. It is also does appear to the court that the word “may” in Article 172 (2) must be construed as “shall” in the mandatory sense.

It is true that, in the context of the Rules of the High Court, “civil proceedings” do not embrace public law proceedings for the prerogative writs. But, in the context and for the purpose of the Constitution (and particularly Article 172 (2)) “civil proceedings” must be widely construed to embrace even public law proceedings since the clear purpose of Article 172 (2) is to give absolute protection to each member of the Assembly against any curial proceedings by rendering such proceedings still-born. However, it must be noted that the Speaker is not protected from such proceedings since, even though a member of the Assembly under Article 51(2), he is the representative of the Assembly as a body and does not speak or report to himself or bring any matter or thing before the Assembly by way of “petition resolution, motion or otherwise.” If the Speaker were to be protected from curial proceedings under Article 172 (2), then there will be no one against whom proceedings can be brought to challenge any act or thing done by the Assembly on the ground of unconstitutionality or illegality. Even the Assembly as a body is not above the law and the Constitution.

Earlier in these proceedings, Mr. Ramjattan made the preliminary submission that the Speaker as a member of the Assembly under Article 51 (2), was “immune” from suit under Article 172 (2). The court overruled his submission. But, unfortunately, in so doing, the court had narrowly construed “civil proceedings” as not embracing “public law” proceedings (consistently with those authorities which held that “civil proceedings” do not embrace prerogative or judicial review proceedings in the context of the Rules of the High Court. On a re-think, the court has revised its opinion and now takes the view that “civil proceedings” for the purpose of Article 172 (2), do embrace public law proceedings even though for the purpose of the Rules of the High Court, “civil proceedings” have a narrower embrace and do not speak to prerogative writ proceedings. The interpretation which has been accorded to an ordinary statute or the Rules of court cannot be used to colour the interpretation of the Constitution. The words “civil proceedings” in Article 172 (2) must be accorded an interpretation to give effect to its full purpose rather than one which would partially defeat its purpose.

It is also obvious that the word “may” in Article 172 (2) must be construed as “shall” in the mandatory sense. Otherwise, the whole purpose of giving protection to the individual floor members of the Assembly would be defeated by an interpretation which would allow both civil and criminal proceedings to be instituted, as a matter of discretion, against a member of the Assembly – thereby unnecessarily creating an inhibition against him in the performance of his public duty as a member of the Assembly. Article 172 (2) is therefore absolutely prohibitory despite the use of the word “may” therein.

It is for the above reasons that the court, on its own motion, not as a matter of the exercise of judicial discretion but rather as a matter of constitutional compliance, struck out the 2 and the 3 named defendants. In the court’s view (though somewhat revised) the protection given by Article 172 (2) was by absolute procedural prohibition and not by personal immunity and therefore the concept of waiver is not attracted.

CENTRAL ISSUE

Just as Article 171 (2) (a) prohibits the Assembly from proceeding upon a Bill for altering a charge upon the Consolidated Fund or other public fund, in like manner does Article 171 (2) (b) prohibit the Assembly from proceeding upon any motion for such a purpose. However, in Article 171 (2) (a) (11) the words “otherwise than by reducing it” appear immediately following the words “for altering such a charge”. By implication, the effect of the insertion of those words in Article 171 (2) (a) (11) means that, by way of exception, the Assembly can proceed to alter a charge which has been imposed on the Consolidated Fund or any other public fund upon a Bill – even without the recommendation or consent of the Cabinet.

But, alteration of a charge on the Consolidated Fund or other public fund by way of reduction is not one of the purposes to which Articles 171 (2) (b) speaks – even implicitly. Articles 171 (2) provides:

“Except on the recommendation or with the consent of the Cabinet signified by a Minister, the Assembly shall not -

(a)         proceed on any Bill (including any amendment to a Bill) which, in the opinion of the person presiding, makes provision for any of the following purposes -

(1)….. ………………………………………………………

(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:

(III       )………………………………………………………………….

(IV)… …………………………………………………….

(b)     proceed upon any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding; would be to make provision for any of the purposes aforesaid.”

Article 171 (2) (b) is simply prohibitive of the Assembly from proceeding upon any motion in relation to the making of provision for any of the purposes specified in Article 171 (2) (a) (1), (11), (111) and (IV) and does

not at all address and has no relevance to the exception contained in Article 171 (2) (a) (11) i.e. alteration of a charge by way of reduction. Therefore, Article 171 (2) (b) cannot be used in aid or support of the submission that a charge upon the Consolidated Fund or any other public fund can be reduced upon a motion (in contradistinction to a Bill) without the recommendation or consent of Cabinet. After all, a charge imposed upon the Consolidated Fund or any other public fund is imposed by the Constitution, by an Act of Parliament or, generally, by an* Appropriation Act. Consequently, such a charge can be reduced only upon a Bill and not a motion. Amotion cannot alter (whether by way of increase or reduction) a charge imposed by the Constitution, an Act of Parliament or an Appropriation Act – only a Bill can be used to do so.

In any event, Article 171 (2) (a) and (b) has nothing to do with the reduction of the Minister’s estimates presented to the Assembly for its approval and is therefore irrelevant. The words in Article 171 (2) (a) (11) (“otherwise than by reducing it&rdquo have nothing at all to do with the reduction of the Minister’s estimates but rather with the reduction of a charge which has already been imposed upon the Consolidated Fund by an Appropriation Act or by the Constitution or an Act.

If the Assembly were permitted to cut the Minister’s estimates, the estimates, when cut, would necessarily become the estimates as fixed and determined by the Assembly and would cease being the Minister’s estimates. If the Assembly has the power to cut the estimate in relation to one line item, then, as a matter of principle, it would have the power to cut each and every line item. Assuming that the estimates in relation to each and every line item were to be cut to $1, it can hardly be said that the estimates as cut remain the estimates of the Minister. Any power in the Assembly to cut the Minister’s estimates would necessarily mean that the requirement ofapproval by the Assembly in Article 218 would become otiose and unnecessary and in effect a nullification of that constitutional requirement since the Assembly cannot sensibly be. required to approve an amount which itself has fixed by reduction or cut. The amendment of the estimates by reduction would be a fait accompli by the Assembly and any approval would be meaningless. Finality does not invite any subsequent approval.

Moreover, a power in the Assembly to cut would necessarily mean that there would be no room for the Minister to essay any amendment to his estimates to meet the concerns of the Assembly expressed in the course of the budget debates or in the Community of Supply. The Minister’s power to amend his own estimates to meet the Assembly’s concerns would become non-existent as a feature of the budgetary proceedings. Clearly, it is the Minister’s estimates or amended estimates which require the approval of the Assembly under Article 218 and this constitutional requirement is necessarily inconsistent with the existence of power in the Assembly to cut and thereby to fix the estimates of expenditure – the purported exercise of which power” would necessarily precludes any further need for approval by the Assembly.

It is one thing to say that the Assembly or the Committee of Supply can propose amendments to the estimates. It is quite another thing to say that the Assembly can itself effect those proposed amendments to the estimates. If the Assembly itself were to effect amendments to the estimates, that would be an end to the matter and the issue of the Cabinet accepting or rejecting those amendments would not and cannot arise. All that would be needed is for some member of the Assembly to table an Appropriation Bill before the Assembly in respect of the amended estimates. But, it is clear from Article 171 (2) (a) (11) that the Assembly cannot proceed on any Bill for imposing any charge upon the Consolidated Fund or any public fund without the recommendation or consent of the Cabinet. It is therefore clear that the National Assembly can propose amendments and not itself make amendments to the Minister’s estimates. If the Assembly has already amended the estimates, then this obviates the necessity for its subsequent approval and the requirement for approval in Article 218 is effectively negatived.

It is not a constitutional requirement and it could hardly have been within the contemplation of the framers of the Constitution that the Cabinet would recommend or give its consent to the tabling of an Appropriation Bill which are not the estimates of the executive Government but are, in reality, the Assembly’s estimates – they having been reduced by the Assembly in the face of objections by the executive Government. Otherwise, Cabinet would become the approver of the Assembly’s estimates rather than vice versa. Under the Constitution, it is clear that it is the Assembly which has the power of oversight of the Government’s estimates and not vice versa. The Constitution does not at all allow for such a reversal of roles. The Government may be forced by the non-approval of the Assembly to amend its estimates as a matter of political practicality. But, as a matter of constitutional legality, the Assembly cannot itself proceed to amend the Government’s estimates. It cannot be the fixer and approver at the same time. Even the demands of political expediency cannot justify unconstitutionality.

The power of the Assembly to approve (or not to approve) the Minister’s estimates simply means that the Assembly is conferred with a “gate keeping” function by the Constitution and does not imply or involve a power to amend or to adjust (cut) the estimates presented by the executive Minister. The Assembly can mark the paper for passing but it cannot amend or interfere with its contents in order for it to be passed. If it needs any correction or amendment for approval, it is the Minister who must do the correction or amendment to obtain the Assembly’s approval. Assuming for the purpose of analysis, that the Assembly were to take the view that a sum of money would be insufficient to implement a project acceptable to the Assembly and the issue becomes not that of “cutting” but of increasing the estimates. Surely, it would be the Minister who would be required to raise his estimates and not the National Assembly to effect any increase in the estimates.

Because it was pointed out that a Standing Order of the Assembly has permitted the Assembly to effect cut or reduction to the Estimates of Expenditure, it must be mentioned that Section 9 of the Constitution of Co-operative Republic of Guyana Act (not Article 9 of the Constitution which is a Schedule to the said Act) did not convert pre-existing Standing Orders made by the Assembly from their status as procedural rules of self-regulation into procedural rules of law. After all, the fact that any Standing Order can be repealed or amended by the Assembly itself without the need for any repealing or amending legislative provision is a clear indication that Standing Orders are not written law. What Section 9 of the Constitution of the Co-operative Republic of Guyana Act did was to recognize the existence of Standing Orders as Standing Orders and to provide for the immediate continuity of their existence as such. Whatever their contents, the Speaker cannot interpret them and the Assembly cannot apply them in such a manner as to contravene the Constitution. Indeed, since interpretation of Standing Orders is the responsibility of the Speaker, Section 9 mandates him to construe them as to achieve conformity with the Constitution. It is not the function of the court to interpret Standing Orders. However, it is the function of the court to act as guardian of the Constitution and to ensure that, whatever the contents of Standing Orders, their application does not involve a contravention of any provision of the Constitution or the law of the land. The court, acting as guardian of the Constitution, cannot be accused of seeking to fetter the work of the Assembly since it must be recognized that what fetters the Assembly is not the court but the Constitution itself or the law itself as interpreted by the court. It is not the court which fetters but the Constitution or the law as interpreted by the court.

It must be stated at this juncture that Standing Orders are not written laws as defined in Section 2 of the Interpretation and General Clauses Act, Chapter 2:01, which provides:

“written law” means the constitutional instruments, Acts of Parliament, subsidiary legislation and applied laws.”

Article 165 (1) of the Constitution, in enabling the Assembly to make rules to “regulate its own procedure” does not at all make the Assembly a law-making body. It is Parliament which is made the law – making body (Article 65) and not its component part, the Assembly. Article 165 (1) is not an enabling law – making provision and the rules made by the Assembly are not subsidiary legislation within the meaning of Section 2 of the Interpretation and General Clauses Act but are merely internal and domestic rules of self – regulation. This is precisely why their interpretation is the function of the Speaker and not the function of the court. The court is concerned only with whether their application (however they may be interpreted by the Speaker) is offensive to the Constitution or the law of the land.

It is true that, as a matter of generality, the court has no supervisory jurisdiction over the Assembly. But it is constitutional heresy to state that the court has no supervisory jurisdiction at all over the Assembly. In respectof unconstitutional or unlawful conduct on the part of the Assembly, it is trite law that the Court does have a supervisory jurisdiction over the Assembly. It is in the exercise of its supervisory jurisdiction over Parliament itself that the court strikes down legislation on the ground of unconstitutionality. While the court would not generally interfere in the internal operations of the Assembly, the court in the exercise of its supervisory jurisdiction would declare conduct of the Assembly unconstitutional or unlawful (See Privy Council decisions of Rediffusion (HIP V. AG of HK (1970) AC 136, Methodist Church V Svmonette (2000) 59 WIR 1 and Barton VTavlor (1886) 11 App. Cas 197) and, in appropriate cases, may even issue mandamus against the Assembly (See The Law of Writs by V.G Ramachandran’s Law of Writs 6^th Edition Volume 2 at 1129 – 1130). In relation to Parliament and the Assembly, its supervisory jurisdiction is necessarily limited but is certainly not non-existent.

What must inform this court’s decision are the relevant provisions of the Constitution of Guyana rather than the practices which obtain in foreign jurisdictions – without helpful reference to parallel or similar constitutional or legislative provisions in those jurisdictions. In the light of what has been stated above and in its previous written preliminary ruling, this court holds that, while the Assembly may approve or not approve the Minister’s estimates of expenditure, it has no power to amend those estimates by way of reduction (or of increase). It is the executive Minister’s estimates and it is he who must amend them to obtain the Assembly’s approval so that the Cabinet may recommend or consent to the presentation of an Appropriation Bill to the Assembly for passing for the purpose of charging those estimates to the Consolidated Fund. Consistently with the doctrine of separation of powers which inheres in the Constitution of Guyana, it does appear that only the Constitution itself and not even Parliament (let alone the Assembly) can authorise the Assembly to amend the estimates of the executive Minister. A fortiori, the Standing Orders, being mere internal regulatory rules, cannot do so.

The very fact that the Constitution has provided for the approval (and, by necessary implication, non-approval) of the Minister’s estimates of expenditure by the Assembly in Article 218 conduces to the irresistible conclusion that approval cannot be interpreted to mean “to amend” for it would be nonsensical for the Constitution to require the Assembly to approve that which it has itself amended. The power to amend may involve the power to approve. But a power to approve does not imply a power to amend.

The court has noted that the remedies sought in this Action relate to the Estimates of Revenues and Expenditure for the financial year 2012 and the present financial year is 2014. However, despite supervention by passage of time, the court takes the view that the central issue which has been raised in this case has not thereby become academic or infructuous because of the reality of the repetition of the questioned action by the National Assembly in subsequent financial years i.e continuity of the questioned conduct. In the circumstances, the court sees it fit to declare that the National Assembly through the committee of supply has acted unlawfully and unconstitutionally in purporting to reduce or cut the Estimates of Expenditure of the Minister of Finance for the financial year 2012. The court sees it fit to further declare that the power of the National Assembly is limited to giving or withholding its approval for the Minister’s Estimates when those estimates are laid before the Assembly for its approval under Article 218 of the Constitution.

Each party to bear his own costs

Ian N. Chang, C.C.H, SyC Chief Justice (ag.)

Dated this 29^th day of January, 2014