- Court is final arbiter

THE final ruling of Chief Justice (ag) Ian Chang in the now infamous budget cut case has laid a number of legal issues to rest, many of which were novel, given the parliamentary configuration in which the Opposition holds a one-seat majority.

Attorney General and Minister of Legal Affairs

Speaking on the television programme Political Scope, recently,  Attorney General and Minister of Legal Affairs Anil Nandlall said that the ruling has vindicated the position that the Government has firmly held over the past two years, which is that the parliamentary Opposition cannot, by a mere majority vote, alter the country’s national estimates of expenditure as presented by the Finance Minister.

No power to cut
In 2012, the Opposition rocked the nation when it inflicted several cuts to the budget totalling $20.8B. At that time, the AG, as well as several other government MPs presented to the Parliament cogent arguments, all pointing to the unconstitutionality of this action. These initial arguments have finally been validated by Justice Chang’s ruling which states that the powers of the National Assembly are limited to giving or withholding approval for the annual estimates of expenditure presented by the Executive through its Finance Minister. The National Assembly, more specifically the Opposition, therefore, has no power to reduce the said estimates.
Minister Nandlall explained that apart from having no power to inflict a reduction, the Opposition cannot substitute their own estimates, and use their majority of one to pass that substitution since the Constitution clearly states that the responsibility for the presentation of national estimates is that of the Finance Minister.

Separation of powers
The doctrine of the separation of power reposes in the Executive the power to prepare and present to the legislature, estimates of expenditure for the country on an annual basis.
“A part of the legislature cannot arrogate unto itself a power which the constitution resided with the Executive and using mere majority votes in the National Assembly to hijack that power from the Executive and seek to exercise it,” Minister Nandlall explained.
He recalled that having failed in persuading the Speaker and the Opposition to withdraw the motion to cut on the basis of its unconstitutionality, the government was left with no choice but to seek recourse in the courts, which is the appropriate resort when any organ of State violates the supreme law of the land.

Preliminary ruling
Minister Nandlall recalled that when the preliminary ruling on this matter was made, the Opposition refused to be bounded by it. “They incredulously and irrationally felt that they can disregard that ruling, that somehow that ruling has no force and they were calling upon us to have a final ruling.”
He explained that there are no ambiguities in the law as they relate to court rulings, whether preliminary or final. “Every person who has a fleeting knowledge of and/or is acquainted with the law knows that a ruling from a court, unless and until it is set aside, whether it is interim or final, it must be obeyed,” the AG said.

Standing Orders
One of the arguments advanced by the Opposition was that the power to cut the national estimates was conferred on them by the Parliament’s standing orders. This issue was thoroughly dealt with by the Chief Justice in his ruling.
The AG relayed that standing orders are merely rules of procedures for the internal operations of the National Assembly; they are not laws and are not published in the Official Gazette. Moreover, these standing orders do not require the assent of the President and therefore they do not have the force of law.  “The standing order cannot confer a power; it just regulates a procedure… legal powers are conferred by law or the Constitution, and it is the Constitution that confers powers on the Minister of Finance and on the Opposition in the National Assembly, a power to approve or withhold approval,” he explained.
He reminded that the Constitution, as the supreme law of the land, prevails over any law that conflicts with it, and similarly, if standing orders, which do not have the force of law, collide with the Constitution, then they too will be deemed unconstitutional and unlawful.

Struck out
With regard to the Chief Justice’s ruling to exclude Opposition Leader, David Granger and Finance Minister, Dr. Ashni Singh from the proceedings, the AG explained that this ruling accorded with Article 172 of the Constitution, which stated that no civil or criminal proceedings may be instituted against any member of the National Assembly for spoken or written words to the National Assembly or anything brought by way of petition or Bill.
“It is correct that we have never had this type of parliamentary configuration before, and therefore litigation of this type has never arisen before. Everyone is learning or trying to deal with these legal issues that are arising; this judgment has, in a great way, addressed many of the grey areas out there, and has given guidance for the future conduct of the National Assembly,” the AG said.
When this ruling was made, the Opposition Leader indicated his intention to appeal the case. At that point, the Chief Justice, of his own volition, placed the budget cut case on hold for almost five months to facilitate the appeal.  At the end of that process in the Full Court, the Opposition Leader lost that case; it was then that the Chief Justice proceeded to render his final ruling.
“A court can only be forced to stop hearing a matter or from not proceeding to hear or conclude a matter if another court orders that court to do so. We have no court order here to that effect from any court which prohibits the Chief Justice from moving forward. He voluntarily waited for almost five months. They went to the full court, filed whatever they had to file and they lost again,” the AG said.

Future budgets
Though the ruling of the Chief Justice deals with the 2012 budget, Minister Nandlall explained that the principles he adumbrated here are principles of law that ought to guide future budgets.
“If you do not have a power to cut the 2012 budget, you cannot have the power to cut the 2014 budget, unless we change the Constitution to give some additional power which you now do not have. I am hoping that we will not be visited with the ordeal of the Opposition disregarding the clear, final ruling of the Chief Justice of the country to once again attempt to cut the national estimates, because again they will demonstrate to this nation that they are prone and they have this proclivity to violate the law of the land and to use their votes in the National Assembly to bulldoze parliamentary processes and procedures,” he stated.
Since this ruling has been announced, AFC leader Khemraj Ramjattan has told the media that they will be filing an appeal. However, the filing of an appeal, would not in anyway put this ruling on hold.
The AG explained that a ruling from a judge can only be put on hold by order of another court, either of its equal or of a more superior jurisdiction. He pointed out too, that the Chief Justice, in his ruling, did not order anything to be done; he simply declared what the law is in relation to this matter.
“You do not get a stay of a declaratory order. The Chief Justice has simply declared in accordance with the Constitution that the Opposition has no power to cut the national estimates …the High Court of the Supreme Court of Judicature is the only institution in the country that has the power to interpret and declare on the Constitution of Guyana and what it says and what it doesn’t say. If you disagree with that ruling of that High Court, then you go to the Court of Appeal and then the Caribbean Court of Justice,” the AG informed.

Final arbiter
Importantly, Parliament does not have the power to declare provisions of the constitutions and since the court is the final arbiter on matters of law in Guyana’s legal system, then its declaration is final and binding on every agency of State, including the President and the Parliament.
Should the Opposition proceed to cut the 2014 National Budget, as they have already indicated, then according to the AG, the Speaker would be put in an invidious position, since a large part of the Chief Justice’s judgment clearly outlines the direction in which the Speaker ought to be guided.
The ruling declares what the final position is in relation to motions that can be filed in the National Assembly.
“The Speaker, on repeated occasions, has said openly and publicly that he has some power of review over what transpires, so in his power of review, he has to ensure that the Constitution is not violated,” the Legal Affairs Minister highlighted.
The National Assembly is a creature of the Constitution and is bound by it. The court, in its ruling as the final arbiter, gave its interpretation of the constitution. If this interpretation is deemed to be inaccurate, then the legal system provides a method by which that inaccuracy can be rectified.
“It is not open to any agency or person or authority to flout what is the final pronouncement coming from the court of law on matters of law and the Constitution. All are bound, including the Speaker, the Executive, and even the Judiciary itself by what the judiciary declares to be the Constitution and the intention of the framers of the Constitution, and by what it interprets to be the law of the land,” the AG concluded.

source:Guyanachronicle