“The court acting as guardian of the Constitution cannot be accused of seeking to fetter the work of the Assembly since it must be recognised that what fetters the Assembly is not the court but the Constitution itself or the law itself as interpreted by the courts. It is not the court which fetters but the Constitution or the law as interpreted by the Court.”

When we try to justify positions which run counter to a progressive historical trajectory, it rarely makes sense and frequently leads to the confusion of thought exhibited above. What is the crux of any court if not its interpretation? For Chief Justice Ian Chang to tell us that what fetters the Assembly is not the court but its interpretation is therefore truly historic.

The court is not some kind of divine heavenly intervention that periodically showers us with undisputable truths; it is not an objective reality outside of the judge(s) that constitute it and provide us with interpretations. In the matter of the Constitution of the Republic of Guyana between the Attorney General of Guyana and Raphael Trotman, et al., the court was Chang CJ, with all his human prejudices, ambitions, fears, etc. Thus what fetters the Assembly is the peculiar interpretation of Chief Justice Chang and not some magical, objective, court. Interpretations of this sort may or may not take into consideration many variables and are not simply right or wrong but also restrictive or liberative depending  upon the predisposition of the interpreter.

This is essentially why throughout the judicial history of the United States of America the parties in government keep trying to place people of their specific persuasion on court benches and particularly the Supreme Court bench. And American history is replete with the differing judgments of differently constituted courts on essentially similar issues such as school busing, affirmative action, etc.  Sometimes, depending on where one stands on an issue, the decision of the Supreme Court could be seen as a fetter or liberating.

Indeed, the very idea of an appeal suggests that one is questioning specific interpretations of specific judge(s). Any attempt therefore to cloak the responsibility for a given decision under some notion that the Constitution/laws and not the court is solely responsible for it is nonsense and must be rejected if we are to understand how a specific decision came to be made and take any necessary remedial action.

We expect modern judges to base their decisions not simply on (as we have seen above) some questionable logical excursion rooted in a few pieces of written laws. Quite apart from consideration of the law and precedents, due consideration must also be given to legitimate expectation, modern trends and to the needs of the given society, and this approach is not new to our judiciary.

For example, it had become legendary that during the Burnham era in most instances where the constitution or laws required the government to consult with the opposition, Mr. Burnham would simply phone Dr. Jagan and inform him what he intended to do without bothering much about what he had to say. In 1999, in a dispute between the Guyana Medical Council and the Ministry of Health, a more modern-minded chief justice, Desiree Bernard, in giving her decision took into consideration modern notions of consultation that require not simply that one meet and talk but that written reasons for decisions taken be given. I remember this because even though the decision was against me, I was impressed by this small attempt to modernise our relationships.

At the international level, legislative involvement in the budgetary process has largely been responsible for the growth of democracy. The power of the legislature in this process has waxed and waned, but today, as the people seek to take greater control of their existence, it is again on the rise. “Recent years have witnessed a resurgence of legislative roles and responsibilities in budgeting” (Posner, Paul and Chung-Keun Park (2007) “Role of the Legislature in the Budget Process: Recent Trends and Innovations,” OECD).

In 2007, 18 of 30 OECD countries reported that their legislatures had unrestricted powers to amend the budget. In the remaining countries some legislatures could amend only if they did not change the overall fiscal position while others could only decrease and not increase proposed spending. As we all know, in the United States Congress, the president’s budget is regarded as only a recommendation; when Congress is controlled by a different political party than the president, the executive budget is often referred to as “dead on arrival” (Ibid)

In “What the chief justice ruled” (SN: 02/02/2014) Mr. Ralph Ramkarran, gave a brief (some would say tongue-in-cheek) historical development of the relevant Constitutional Articles stating “Essentially, therefore, the power of the National Assembly to increase or reduce the estimates has remained intact and unchallenged since Independence based on what appeared to be clear constitutional provisions.” Mr. Ramkarran was intricately involved in the process that crafted the present constitution and here indicates not only what the traditional belief was but also what was the expectation of at least some if not all of the drafters.

Chang CJ narrowly, but pointedly told us that “What must inform this court are the relevant provisions of the Constitution of Guyana rather than practices which obtain in foreign jurisdictions” – without helpful reference to parallel or similar constitutional or legislative provision in those jurisdictions. There obviously was only a smattering of the latter!

Furthermore, in my view, his deliberate decision not to give Article 171(2) (b) of the Constitution similar weight to Article 171(2)(a)(ii), which allows the Assembly to reduce the government’s estimate to conclude a national budget, is to say the least overly restrictive, arbitrary and questionable.

What this episode has reminded us of is that courts are constituted of people with all their prejudices and interests and that to reduce bias, important matters such as this should, even in the first stages, be assigned to a panel and not left to a single person. Secondly, where possible, when subsequent events can be affected by an instant decision, rules should be made to ensure that that decision is given in sufficient time to allow for appeals to be heard.

Chief Justice Ian Chang has provided us with one judicial interpretation of our laws that is arguably the most reactionary in our post-independence history.  It failed to take into consideration the general trends in international parliamentary/budgetary relations, long and historical practice in Guyana and even the nature of our society, which cries out for arrangements that will force compromise. What he has done makes an already largely irrelevant people’s chamber even more so!

henryjeffrey@yahoo.com