ATTORNEY General and Minister of Legal Affairs, Anil Nandlall yesterday stated that Chief Justice (ag) Ian Chang has ruled that the National Assembly has no power under the Constitution to reduce the national estimates when they are presented for approval. The Chief Justice, in a preliminary ruling, stated that in relation to the national estimates, the National Assembly “performs a gate-keeping function; a power of disapproval is not contemplated by the Constitution.”
The Attorney General was updating reporters on the preliminary pronouncement of the CJ delivered on government’s application to the Supreme Court for an Interim Order to allow the Minister of Finance to access monies cut from national budget. According to the ruling, he now has the power to do so, if necessary.
An application for a stay of execution for the amended order granted was submitted by Senior Counsel Rex McKay immediately after the ruling. This was objected to by the AG and refused by the CJ after hearing arguments on both sides.
While the case is still ongoing and has been adjourned to September 6, 2012, the AG stated, “I am pleased with the court’s ruling. My submissions have been vindicated.”
He said that according to the ruling of the CJ, when the National Assembly cut the 2012 National Estimates and Expenditures, “they acted outside of the Constitution and therefore unconstitutionally.”
AG Nandlall said also that “the court proceeds to say that the Minister of Finance is resided with the power under the Constitution and the law, to withdraw from the Contingency and the Consolidated Funds, whenever the minister has formed the opinion that there is a need to do so, and that is what the law says.”
More importantly, he noted that with regard to the preliminary pronouncement of the court that the reduction is unconstitutional, “the minister is now free to exercise his statutory and constitutional powers which allow him to withdraw from the Consolidated and/or the Contingency Funds for the purpose of funding agencies where he feels that there has been an insufficient allocation made.”
With respect to the vindication of his submissions that the cuts were unconstitutional, AG Nandlall, referred to page 17 of the judgment which states: “Applying that doctrine to the interpretation of article 218, it does appear to the court that it was not permissible for the National Assembly to cut or to reduce the estimates and expenditures to any particular figure since, in so doing, the National Assembly was both determining and approving such estimates. If the drafters of the Constitution had wanted the National Assembly to exercise such a power, they would have easily conferred such a power on it in the Constitution in express terms as was done in India- see Article 113 (2) of the Constitution of India; or Australia.”
The CJ’s ruling is that the Minister of Finance based, upon his opinion as outlined in the Constitution and the Financial Management and Accountability Act, “is free to form an opinion as to whether or not he needs additional monies in respect of the estimates and if the minister forms that opinion, then he is free to withdraw the money and then seek Parliamentary approval.
In relation to the Ethnic Relations Commission (ERC), because that body is a direct charge on the Consolidated Fund, the CJ has made an Order in relation to that one in particular. In relation to the remaining reliefs which are the substantive reliefs, those are left to be granted when the matter is fully heard and determined.
The AG explained that the Constitution allows the Minister of Finance to access monies from the Consolidated Fund in two ways, one before going to Parliament, and the other subsequent to going to Parliament. Thus the CJ in his ruling has said that because the ERC is a direct charge on the Consolidated Fund, it is not subject to parliamentary approval.
Additionally, the CJ has ruled that, “If the Minister of Finance finds that the amounts appropriated by the Appropriation Act are insufficient, it’s open to him to lay before the National Assembly a Supplementary Estimate of Expenditure under Article 218 (3) of the Constitution.
Additionally, if he is satisfied that there is an urgent need for expenditure for which provision has not been made, it is open to him to approve a Contingency Fund advance or advances by the issuance of drawing rights …”
This ruling, the AG states, has paved the way for the minister to now exercise “his opinion and his statutory powers for all of the budget cuts.”
The case is divided into two parts, Interlocutory and Substantive. The Interlocutory part has been concluded, with the Substantive action left to be determined.