GUYANA FACES A CONSTITUTIONAL CRISIS
April 19, 2013, By KNews, Filed Under Features / Columnists, Peeping Tom, Source
The opposition parties should continue to have their fun. Their recent “cuts” of funding for the proposed specialty hospital is, however, of mere academic importance, because these “cuts” are going to be eventually overturned by the judiciary.
The local judiciary is not going to sit idly by and allow for any agency, be it the executive or the legislature, to flout its rulings. The court is the defender of the Constitution and it is court, not the parliament, which pronounces on the constitutionality of legislation and legislative actions.
The court has done so in the past. It has overturned legislation that was deemed inconsistent with the Constitution, forcing the then government to make amendments to ensure compatibility.
Just recently, it overturned a decision of the legislature to cut funding for the Ethnic Relations Commission and orders were given to restore the funding to that body.
Coercive orders unfortunately could not have been granted with respect to the other “cuts” for two reasons. For one, the government signed into effect an Appropriation Act which legalised the cuts. As such, it was outside of the remit of the court to issue coercive orders.
Secondly, in keeping with the convention of comity that should exist between the judiciary and the other arms of the State, the court tends to restrain itself from issuing such orders, relying instead on the belief that the legislature would, of its own volition, respect the court’s authority to review the constitutionality of both legislative and administrative actions.
That restraint is likely to change because the legislature is misleading itself into believing that it enjoys supremacy and therefore is not bound by the findings of the court.
In Guyana, it is the Constitution that is supreme and the legislature enjoys sovereignty over its own procedures but cannot, as Justice Chang ruled, use these procedures as the basis for enlarging the scope of its constitutionally-decreed powers.
This issue of parliamentary supremacy/sovereignty was decided a long time ago in the foundational constitutional law case, Collymore v Attorney General (1967) where the court ruled that the issue of parliamentary sovereignty did not arise, and in which it was clearly outlined that any sovereignty that parliament possesses is limited by the Constitution.
“No one, not even Parliament, can disobey the Constitution with impunity.”
Guyana is going down a slippery slope and can find itself headed into the welcoming arms of anarchy, unless clarity and comity is restored to the relationship between the judiciary and parliament. It is disconcerting and dangerous, if not unheard of in Guyana’s political history, for the legislature to go against a ruling of the court on a constitutional question. Even if the legislature feels that the ruling is flawed, it has the right to challenge such a ruling in the appropriate forum, a court of appeal.
The second area of confusion is the idea that it is for parliament to interpret the Constitution. It is the court that is the defender of the Constitution, a fact that has been publicly recognised by top parliamentary officials. It is not for the legislature to pronounce on the constitutionality of matters, but for the courts to do so, and once the courts do so, then a certain course is supposed to be followed in keeping with the comity that is supposed to exist between these arms of the State.
We have a serious crisis in our country, except that this crisis is being superseded by a more deeply ingrained one which will force the former into the background. That ingrained crisis is the crisis of division, which allows persons to support measures because of whose interest they serve. So what we have is supporters of the government dismayed by the recent ruling in parliament and supporters of the opposition overjoyed. In this process, important principles become victims to this desire of either side to win at all costs.
By now, one would have expected that members of the local Bar would have been so concerned about what took place in the legislature that there would have been public protests. But what is likely to happen is that the same divisions which allow for principles to become secondary to interests, will divide the local Bar and mute any dissension over what is perhaps the most serious constitutional crisis this country has ever faced and which leaves the principle of constitutionalism in a very perilous state.
