March 5, 2016 Source

Cuts to the government’s budget can be made by the National Assembly, the Guyana Court of Appeal ruled yesterday, overturning a controversial decision by former acting Chief Justice Ian Chang that had its origins in the opposition-controlled Parliament of 2012.

Justice Chang’s decision had been widely criticised and was appealed by the then Speaker of the National Assembly Raphael Trotman.

Handing down the decision yesterday, acting Chancellor of the Judiciary, Justice Carl Singh, who presided over the proceedings along with Justices of Appeal Yonette Cummings-Edwards and B.S. Roy, found that Justice Chang’s approach on the matter had been markedly narrow and restrictive.

Delivering the ruling at a full-bench open-hearing, Chancellor Singh said the court disagreed with Justice Chang’s ruling that the National Assembly in the context being considered could not cut or reduce the estimates of expenditure as presented by then Finance Minister Dr. Ashni Singh.

In June of 2012, former Attorney General (AG) Anil Nandlall moved to the High Court to seek relief after APNU and the AFC, using their then combined one-seat majority in the National Assembly, moved to reduce the PPP/C government’s budget estimates by $21 billion.

The then opposition at that time had cited a lack of transparency and accountability in the explanations for the cuts to the allocations.

Although then President Donald Ramotar later assented to the budget appropriations bill passed by the National Assembly, Nandlall had subsequently moved to the High Court to reverse the cuts.

Trotman had been named as the defendant in those proceedings before the Supreme Court.

According to Justice Chang in his decision, while the Assembly may approve or not approve the Finance Minister’s estimates of expenditure, it has no power to change them by either reducing or increasing them.

“The power to amend may involve the power to approve, but a power to approve does not imply a power to amend,” he had written in his decision.

Trotman then moved to the Court of Appeal in February, 2014, asking for the former chief justice’s judgment to be reversed and/or set aside.

Nandlall had argued before Justice Chang that while the National Assembly has the discretionary power under Article 218 (2) of the Constitution to approve of (and, by necessary implication, the power to disapprove of) the estimates of expenditure prepared at the instance of the Minister and laid by him in the National Assembly, such constitutional power did not at all involve the additional power to reduce those estimates upon disapproval and then to approve them in such reduced amounts.

Troubling

The Court of Appeal yesterday noted that while Justice Chang found favour with the arguments presented by the AG, there were aspects of his ruling they found troubling.

Reading from the ruling which he delivered, Chancellor Singh said that the court noted the emphasis Justice Chang placed in his ruling on “the Minister’s estimates,” undoubtedly in recognition of the Minister’s Constitutional responsibility as set out in Article 218 (1). That judicial mindset, the Chancellor said, gave rise to the conclusion that in its consideration of the estimates of expenditure submitted by the Minister of Finance to the National Assembly for its approval, the latter had only two choices open to it, that is, to approve or disapprove.

Chancellor Singh pointed out that Justice Chang was of the view that any disagreement with the estimates of expenditure or any particular line item contained therein could not be revised or reduced by the National Assembly and that this could only be achieved by the act of the Minister.

The Chancellor registered the disagreement of the other Justices of Appeal with the former chief justice’s view that the National Assembly could not in the particular context of its configuration and the combined voting strength of the opposition parties therein, reduce the estimates of expenditure presented by the Minister of Finance.

Chancellor Singh said that the appeal judges are in agreement with Justice Chang that Article 171 (2) (a) (ii) and (b) of the constitution speaks to an existing charge upon the Consolidated Fund. He, however, said that what is at issue in the present appeal is the estimates of expenditure presented to the National Assembly by the Minister of Finance.

The Chancellor said that while Justice Chang quite correctly in their view made that distinction, they disagreed with his conclusion that the “act of the National Assembly in cutting or reducing the estimates of expenditure laid by the Minister of Finance under Article 218 of the Constitution was outside of its constitutional remit.”

According to Chancellor Singh, “it really comes down to a question of the interpretation to be placed upon Articles 218 (1) and (2) of the Constitution.”

Fades away

The Justices of Appeal noted that while they agree that the constitutional responsibility for the preparation and presentation of the estimates of expenditure was that of the Minister of Finance (or other designated Minister), it is their considered view that once those estimates of expenditure are laid before the National Assembly, “the Minister in a sense fades away.”

Those estimates of expenditure, the Chancellor said, then become the subject of scrutiny by the National Assembly. He said that “in other words, what is gathered from the constitutional matrix is a two-tiered process.”

First, the court noted, there is the preparation and presentation to the National Assembly of the estimates of expenditure, which is followed by the second tier of the process—scrutiny of the estimates of expenditure by the National Assembly.

The Chancellor said that the object of the examination of the estimates of expenditure by the National Assembly is for that body to determine if it would give its approval to the estimates as presented by the Minister.

According to the Justices of Appeal, “it would put a strain on reason and commonsense to expect that in its consideration of those estimates of expenditure the members of the National Assembly would mechanically offer their approval without question or challenge, or change to the estimates of expenditure presented by the Minister.”

The Chancellor said the court found that a generous, purposive approach and a liberal interpretative technique was missing from Justice Chang’s interpretation of the relevant provisions of the constitution in this matter.

Chancellor Singh opined, “had there been a more studied examination of the breadth of considerations inherent in the legislative deliberations antecedent to its approval of the estimates of expenditure as envisaged by Article 218 (2) of the Constitution, His Honour’s (Justice Chang’s) conclusion might have been different.”

The Chancellor said that counsel for Trotman, Khemraj Ramjattan, opened the door to the court’s consideration of an appealing approach to constitutional interpretation when he argued that “in considering whether to approve or not to approve the estimates of expenditure as presented to the National Assembly by the Minister of Finance, reducing those estimates was an implied incidental power of the National Assembly in its determination of the question whether the estimates should be approved as presented by the Minister or not.”

The Court of Appeal weighed whether there was a rational connection between the need for approval of the estimates of expenditure and a reduction of those estimates by the National Assembly and answered this question in the affirmative, noting that the National Assembly is “not expected to automatically and mechanically approve” the estimates of expenditure presented by the minister.

The Court of Appeal said that what it found baffling was that, “having found that the National Assembly could, by necessary implication disapprove of the entire estimates of expenditure as laid by the Minister, yet His Honour (Justice Chang) determined that such sweeping power, albeit arising by implication, did not at all involve the power to reduce those estimates.”

“It is defeating to logic and commonsense to contend that the National Assembly could disapprove of the entire estimates of expenditure but did not have the implied power to adopt a less drastic measure, that is to reduce the estimates to a lesser sum,” the Chancellor declared.

He further added, “such a power, we feel, must be essential in the determination by the National Assembly, whether it should give its approval to the estimates of expenditure presented before it pursuant to the provisions of Article 218 (1) of the Constitution, or not.”

In concluding his judgment, Chancellor Singh also pointed out the discordant declaration by the Minister of Finance in April, 2012, that the Committee of Supply had considered the estimates of expenditure and approved them as amended when it had been argued by the government side that that ability to amend resided only with the Finance Minister.

“In this circumstance, we must express our surprise at the proceedings commenced by the learned Attorney General, particularly since the Minister had advised the National Assembly that Cabinet had indicated its consent that the Assembly proceed with the Appropriation Bill and its accompanying amended schedule”.

Justice Chang’s decision was severely criticised by the then opposition, non-government groups and commentators.

Chancellor Singh also took the opportunity to rebuff accusations in the press that the Court of Appeal had been delaying the hearing of the appeal.

“When those unfounded observations were publicly made, the record of the appeal had not yet been settled. It took 10 months from the filing of the appeal, before the record of appeal was settled. The responsibility of settling the record is with the appellants (Trotman) and they delayed in doing so,” the Chancellor said.