FROM the time the combined opposition in the National Assembly effected a reduction of the estimates presented by the Finance Minister during the 2012 Budget, I said that they had acted unlawfully and unconstitutionally.  The opposition chorused that I was wrong. When I filed the legal proceedings challenging the budget cuts, they condemned it as misconceived, screaming that the Court has no jurisdiction to pronounce on the exercise of powers by the National Assembly.  The Speaker was very acid in his criticisms.  In a press release, he accused the government of pushing the nation into a “constitutional crisis”.  On the 6th day of June, 2012, on behalf of the government, I responded.  I said:
“The Executive Government’s simple contention is that the National Assembly has acted     beyond, ultra vires and in breach of the Constitution; has usurped the functions of the Executive and has violated the doctrine of the separation of powers and it is seeking legal redress which it is constitutionally and democratically entitled to do.  It is our view, that the National Assembly, like every other creature of the Constitution, must act and function in the manner provided for     and contemplated by the Constitution.  In this instance, it is our considered view that it has not.”
I am vindicated
On the 18th day of July, 2012, after hearing arguments from all sides in the legal proceedings, the Chief Justice rendered his ruling.  It spanned 34 pages in length.  Its content and effect vindicate me.

At page 11 of the ruling, the Chief Justice summarised my submissions thus:
“It is the submission of the Attorney-General 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 does not at all involve the additional power to reduce those estimates upon disapproval and then to approve them in such reduced amounts. It is the submission of the Attorney-General that, in so doing, the National Assembly would, in effect, be approving its own estimates in addition to disapproving those of the minister in derogation and disregard of the doctrine of separation of powers which inheres in all democratic Constitutions and inheres in the Guyana Constitution by virtue of the use of the word “democratic” in Article 1 of the Constitution which needs:
“Guyana is an indivisible, secular, democratic sovereign state in the                     course of transition from capitalism to socialism and shall be known                     as the Co-operative Republic of Guyana.”
Simply put, the Attorney-General has submitted that, in conferring a power of approval or disapproval of the minister’s estimates of expenditure, Article 218 has not conferred in the National Assembly an implied additional power to substitute its own estimates conditional upon the National Assembly exercising its discretionary power of disapproval.”

In order to treat with the issues raised, the Chief Justice, necessarily, examined the Constitutional role of both the Executive and the National Assembly from the perspective of the doctrine of separation of powers and vis-à-vis their respective functions in respect of estimates of revenue and expenditure.

The role of the executive
At page 13 of the Ruling, the Honourable Chief Justice adumbrated the role of the Executive.  His Honour stated:

“It can readily be seen that it is the Minister of Finance (or other designated minister) who bears the constitutional responsibility and duty of preparing and laying before the National Assembly the estimates of both revenues and expenditure. This is so because it is the executive who has the constitutional responsibility of managing and piloting the ship of State and, as a matter of practical reality, the administrative machinery for preparing such estimates. It can also readily be seen that, in respect of expenditure, it is the National Assembly which bears the constitutional responsibility of performing an oversight or a gate-keeping function of approval or non-approval over the estimates of expenditure to ensure that they are in consonance with what will be necessary to fuel the implementation of the plans, programmes and policies of the executive government. This is not a power of making estimates of expenditure (which is for the minister). The power of approval must therefore be distinguished from a power of determination of estimates of expenditure.

Unsurprisingly, the Constitution does not address or speak to a negative state of affairs such as     non – approval by the National Assembly but speaks to a positive state of affairs i.e. approval.     Article 218 (2) provides:
“When the estimates of expenditure (other than expenditure charged upon the consolidated Fund by this Constitution or any Act of Parliament) have been approved, a Bill…..

This is so because it is inconceivable that the National Assembly as a national institution would cripple executive governance by non – approval of any estimates of expenditure. Thus, even though the power of approval necessarily has as its corollary the power of non – approval,     Article 218 (2) was drafted on the assumption that the National Assembly would eventually     approve the estimates of expenditure. Final non – approval of the estimates expenditure by the     National Assembly does not appear to be an option contemplated by the Constitution.”

The Minister of Finance
In this Constitutional matrix, and in his examination of the role of the Executive, the Chief Justice specifically dealt with the functions and the powers of the Minister of Finance.  At pages 15 to 17 of the Ruling, His Honour opined as follows:

“Clearly, it is the Minister of Finance on whom the Constitution has reposed the responsibility of preparing estimates of both revenues and expenditure; it is the minister who must go back to the drawing board and revise his estimates with a view to its obtaining the approval of the National Assembly. Since it is not the function of the National Assembly to approve of estimates of revenues and since the estimates of revenues and the estimates of expenditure are symmetrically related and the minister may see it fit to adjust the estimates of both revenues and expenditure to meet the concerns of the National Assembly, it does appear to the court that it is the Minister of Finance who must revise the estimates and not for the National Assembly to cut or reduce the estimates of expenditure – thereby pre-empting the minister from revising his estimates not only in relation to expenditure (which alone requires the approval of the National Assembly) but also in relation to revenues (which do not require the approval of the National Assembly).”
…
“If the National Assembly were to cut or reduce the estimates of expenditure, this would mean that the estimates of expenditure would be as determined by the National Assembly rather than by the minister. The estimates would be as determined and approved by the National Assembly rather than as determined by the Minister and approved by the National Assembly. Article 218 clearly does not give the National Assembly the power to determine the estimates for its own approval.

Moreover, if the National Assembly had the constitutional power to cut or reduce the estimates of expenditure, it would legally be able to cut such estimates by $1 as well as up to $1. And, were it to act unreasonably or irrationally in so doing, the court would have no power to quash such an unreasonable decision since the court has no power to inquire into what occurs within the walls of the National Assembly – except on the ground of unconstitutional conduct.”

The separation of powers and unconstitutionality of cuts
The ruling next considered the doctrine of separation of powers and applied it to the act by the National Assembly of reducing the estimates presented.  At page 17 of the Ruling, His Honour stated:
“The doctrine of separation of powers undoubtedly inheres in the Constitution of Guyana – indeed, as it does in democratic States. Even though varying amounts or levels of overlap may be found among the powers of the executive, legislative and judiciary in the constitutional architecture of such democratic States, the doctrine of separation of powers does exist in and must inform the interpretation of the Constitution. 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 reduce the estimates of expenditure 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 could 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). In Australia, where there was no such express terms, in 1979, the Joint Committee of Public Accounts of the Federal Parliament reported:
“Theoretically, control over both taxation and expenditure lies with Parliament, but the right to initiate spending proposals lies with the Government. Parliament can debate, examine and criticize the estimates, but must accept or reject the spending proposals as a whole. If they are rejected, this is generally taken as a major defeat for the government, leading either to a vote of no confidence or a general election……………………………………………………………………
The main role of Parliament is limited to considering the estimates when they have been announced and later conducting a retrospective inquiry into how the money has been spent both in order to ensure compliance and to improve subsequent performance.” (see Greg Combet and Anor v Commonwealth of Australia and Ors (2005) 221 CLR 494).

In England, consistent with the doctrine of parliamentary sovereignty, the House can exercise the power to cut the estimates of expenditure. In Guyana, the doctrine of supremacy of the Constitution and not the sovereignty of Parliament prevails.”
The Ethnic Relations Commission
Since the ERC is one of those entities whose funding is constitutionally charged directly upon the Consolidated Fund, the Chief Justice found that Parliamentary approval was unnecessary.  His explanation can be found at page 18 of the Ruling, where it reads:

“Article 218 excepts from the requirement of an Appropriation Act “expenditures charged upon the Consolidated Fund by this Constitution or an Act of Parliament”. It can readily be appreciated that expenditures which have already been charged upon the Consolidated Fund by the Constitution itself or an Act of Parliament need no approval of the National Assembly (which is but a component of Parliament) since the Constitution itself or Parliament itself has already     imposed those expenditures as charges upon the Consolidated Fund. Only estimates of expenditure not so charged upon the Consolidated Fund by the     Constitution or an Act of Parliament need the authorisation of an Appropriation     Act for the withdrawal or issue of monies from that Fund.”

And at page 20:

“One of the entities listed in the 3rd Schedule to the Constitution is the Ethnic Relations Commission. Therefore, it behoved the National Assembly to have determined a lump sum by way of an annual subvention based on a review and approval of the annual budget of the said Commission to cover its expenditure. It is difficult to see how the National Assembly could have performed its constitutional duty in making a determination that the sum of $1 was a lump sum sufficient to meet the expenditure of the Commission for the financial year based on a review and approval of the Commission’s annual budget – particularly having regard to the fact that the Constitution has imposed a multiplicity of functions on it and expressly provided for the establishment of a secretariat (Article 212 B (5)). Such a determination was no more than a purported determination which was not in consonance with the proper performance of the National Assembly’s constitutional duty. It was consequently a nullity.”

The role and functions of the National Assembly
In examining the role and functions of the National Assembly, in a separation of powers construct, at page 24, the Chief Justice pronounced:
“The legal truth does appear to be that it is the Minister of Finance (the executive) which is responsible for preparing and laying the estimates of expenditure before the National Assembly for its approval. The National Assembly in the performance of its gate –keeping function may approve or not approve those estimates. If the minister is not able to satisfy the Assembly, it does not approve. But this is a far cry from saying that, as gatekeeper, the National Assembly is entitled to cut or reduce the minister’s estimates to any particular figure or figures. To do so would be determining and fixing the estimates for its own approval. If the National Assembly can cut and reduce by $1, by the same token, it can cut and reduce to $1. This court has great difficulty in making a finding that the framers of the Constitution could have given the National Assembly such a far–reaching power without saying so expressly or by clear implication. Such a power would mean that the National Assembly would be authorised to render the minister’s estimates of expenditures redundant. The court does not deny that the Constitution as the supreme law can so do but, should it do so, it must be expressed or by clear implication. In this court’s view, such a power cannot be implied by the mere conferment of the power merely of approval.
It is true that Article 165 (1) enables the National Assembly to regulate its own procedure and to make rules in regulation of its own procedure. However, Article 165 (1) has conferred no power in the National Assembly to expand or enlarge the scope of its substantive powers under the Constitution. The power to cut or reduce the ministerial estimates of expenditure cannot be created under the guise of making procedural rules of self-regulation. Like the power to approve or not to approve the estimates of expenditure, the power to effect a reduction thereto is a substantive not a procedural power. Therefore, the National Assembly, under the guise of making procedural rules of self-regulation, cannot confer on itself the substantive power to reduce such estimates.”
Remedies
As regards the ERC, since that is a direct charge upon the Consolidated Fund, and therefore, immunised from Parliamentary interference, the Chief Justice ordered that the budget for that entity be wholly restored from the consolidated fund.  The Chief Justice next considered the various provisions of the Constitution, which speak to withdrawal of monies from both the Consolidated Fund, and its subset, the Contingencies Fund.  His Honour unequivocally stated that withdrawals from either, or both of these funds is to be made by the Minister of Finance.  His Honour unambiguously expatiated that the Constitution permits these withdrawals to be made, with both prior and ex post facto approval by the National Assembly, depending upon the circumstances. The Chief Justice pellucidly enunciated that both the Constitution and the law reside in the Minister of Finance the power, discretion and authority to determine in what circumstances these withdrawals can be made, and it is these circumstances that will dictate whether or not prior or post National Assembly’s approval is required.

According to the Chief Justice, at page 29 of the ruling:

“Article 218 (3) provides:
“If in respect of any financial year, it is found.
(a)    That the amount appropriated by the appropriation Act for any purpose is insufficient or that a need has arisen for expenditure for a purpose for which, no amount has been appropriated by that Act, or
(b)    That moneys have been expended for a purpose in excess of the amount appropriated for that purpose by the Appropriation Act or for a purpose for which no amount has been appropriated by that Act,
a supplementary estimate or, as the case may be, a statement of excess showing the sum required or spent shall be laid before the Assembly by the Minister responsible for Finance or any other Minister designated by the President”.
The application of Article 218 (3) is premised on a finding of insufficiency of an appropriated amount for a stated purpose or of no amount for a purpose for which a need has arisen and which has received no appropriation or a finding of an excess of spending for a stated purpose or for a purpose which has received no appropriation. Article 218 (3) enables the Minister of Finance to lay before the Assembly a supplementary estimate of expenditure or statement of excess spending for its approval on the basis of a finding of insufficient funding, no funding, or over-spending.”
…
The Honourable Chief Justice continues at page 31 of his ruling:
“Thus, if the minister finds that the amounts appropriated by the Appropriation Act are     insufficient, it is 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 Contingencies Fund advance or advances by the issuance of drawing rights – limited to 2% of the previous year’s estimated annual expenditures (section 41 (4)).”
The Court declines to make any further Order(s)
Having established that the law resides in the Minister of Finance the key to unlock this financial conundrum, the Court in those circumstances declined to usurp the functions of the minister.  The Court’s views on this issue are captured at pages 31 to 32 thus:

“Since the court cannot substitute itself for the minister for the purposes of Article 218 (3) and Articles 220 (1) and section 41 (3) of the Fiscal Management and Accountability Act 2003, the court must decline to order any interim relief in relation to reductions or cuts to those line items to which the Appropriation Act applies.
Even if those cuts and reductions were constitutional but have resulted in insufficiency, it is the minister and not the Court in whose hands remedial action lies. The court cannot usurp the constitutional functions of the executive minister just as the National Assembly cannot usurp the constitutional function of the executive minister.”

In conclusion, this ruling, though preliminary, corroborates my thesis that a majority in the National Assembly cannot be used as a licence for the National Assembly to act outside of their constitutionally defined sphere; neither is it  a warrant to arrogate unto itself, by votes, the performance of functions that is not constitutionally remitted to it, but to the Executive. This ruling ought to have a stabling effect on the National Assembly in its future conduct.
Hopefully, the horse will be less unruly.