Will the AFC extend its walkout to the entire debate on the budget?

March 26, 2014, By KNews, Filed Under Features/Columnists, Peeping Tom, Source

The Alliance For Change (AFC) has joined the theatrical bandwagon. Its representatives in the House have introduced their own brand of parliamentary melodrama, by walking out of the National Assembly just prior to the reading of the 2014 Budget Speech.

What inspired this walkout?

Well, the AFC’s latest histrionics was a means of protesting the lack of meaningful consultation over the Budget. In support of the action taken, the AFC is contending that Article 13 of the Constitution states that the objective of the political system is to have an inclusionary democracy, and this objective was not heeded by the government.

Article 13 has become a refuge of those who feel that the government should do what they want the government to do. The government itself is also guilty of using Article 13 as a political rag. Just recently it claimed that the consultations it held on the Anti-Money Laundering and Countering the Financing of Terrorism Bill was consistent with the process of an inclusionary democracy.

The AFC has accused the government of violating the Constitution by not having meaningful consultation on the Budget. But how does it know this?

Is it not the very opposition which has contended that it is only the Courts which can rule on the constitutionality of legislation? So are we to assume that the opposition is now saying that it has the prerogative to pronounce on the constitutionality of acts of the government but it is not for the government to do the same in relation to acts of the opposition in the legislature?

The AFC is contending that by not holding meaningful consultation, the government is violating the Constitution. But in the same breath, the AFC is threatening to do the very thing that it is accusing the government of.
The Courts have ruled that the National Assembly cannot cut the Budget. It can approve or it can withhold approval, but it cannot amend. This is the decision of the Courts. Any act to therefore cut the Budget would be an unconstitutional act because the Court has made a declaration on this question of amending the Budget.

It is quite ironical and barefaced for the AFC to in one breath indicate that it will be cutting the Budget, an act that would be in contravention of the Constitution as declared by the Courts, and yet in the same breath, to be accusing the government of violating the Constitution by not holding meaningful consultation on the Budget.

It is instructive that the AFC has referred to “meaningful consultation” and not just mere consultation. The government in its defence can contend that it did consult and did invite the opposition to be part of the consultation. So the opportunity for consultation was afforded. APNU did not take up that invitation arguing that the invitation came too late for any meaningful discussions to take place.

Article 13 of course does not speak at all to the question of meaningful consultation. In fact the word “consultation” is not even mentioned in Article 13. So it is hard to hazard a guess as to just where the AFC gets the idea that there exists a right to “meaningful” consultation on the Budget.

Article 13 states as follows:
The principal objective of the political system of the State is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens and their organizations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.

The AFC by its histrionics in the National Assembly on Monday is inferring that this provision creates a right, that of meaningful consultation. Never mind the fact that the article in itself makes no mention of meaningful consultation and never mind the article in question refers to increasing opportunities for the participation of citizens and their organizations in the management and decision-making of the State.

The AFC has within its membership sufficient legal expertise to appreciate that like any Constitution there are provisions in Guyana’s Constitution that speak to goals to be aspired. These are provisions relating to the social and economic objectives of the State. They are declaratory provisions, they declare objectives; they do not create rights.

These provisions, such as Article 13 are not-justiciable. They are not the subject matter of legal challenges, or in other words, they are outside of the realm of judicial review. They merely speak to objectives; they do not create legally enforceable rights. Any first-year Constitutional Law student should know this.

There is therefore no justifiable reason why the AFC, with its repertoire of legal knowledge and experience, should not be aware of the legal standing of Article 13.

These provisions create negative obligations for governments. Thus, governments cannot do this or that in relation to these provisions.

With respect to provisions such as Article 13, there is the creation of positive obligations, but not rights. Thus, the government is encouraged to do so and so, unlike the case of civil and political liberties where the government is prohibited from doing certain things such as suppressing free expression etc.

The AFC, therefore, is hanging from a weak limb when it seeks to defend its walkout of the National Assembly on the grounds that a constitutional right to meaningful consultation on the Budget exists. No such right exists.

But since the AFC feels this way, it should not just stay away from the Budget Speech, it should stay away from the entire Budget debate and passage, and file an action in the Courts for constitutional remedies for the failure of the government to meaningfully consult with the opposition on the Budget.