AFTER several hearings, the Chief Justice (ag), Ian Chang, ruled that Opposition Leader David Granger’s application to stop government spending in 2015 had no legal basis, and dismissed it. His decision was delivered a few days ago, against the action that was filed on December 11, 2014.Recapping

Attorney General (AG) and Minister of Legal Affairs Anil Nandlall, speaking on the National Communications Network’s programme ‘Political Scope’ yesterday, recapped that on December 11, 2014, Granger did file a general Indorsed Writ against three persons: Dr. Ashni Singh, in his capacity as Minister of Finance; the Attorney General of Guyana; and Mr. Raphael Trotman, in his capacity as Speaker of the National Assembly.  In this writ, from Granger, a number of reliefs were prayed for in the Indorsement of Claim.
An ex-parte application (one-party only), by way of affidavit, was filed simultaneously with the said Writ of Summons, in which the Applicant, Granger, prayed for a Conservatory Order “to stay all spending and/or any further spending by the first-named Defendant or other Ministers on programmes disapproved or not authorised by the National Assembly until the hearing of the substantive action herein.”
However, in the court, it was agreed by the parties that this application will not be heard ex-parte, and it was therefore by consent, converted into an inter-partes application, that is, a mandate that all parties be present. In the result, the respondents were granted leave to file an Affidavit in Answer to the application and the applicant was granted leave, to file an Affidavit in Reply thereto. This then led to the next procedural step, which was that submissions were to be made by all sides.

Only one issue

AG Nandlall detailed that only one matter was before the court, and that was the application for a Conservatory Order, and absolutely nothing else. He added that this was expressly why all the legal arguments presented by himself in person, and by Mr. Ashton Chase, S.C for the Minister of Finance, exclusively related to the only issue which was before the court, that is, whether or not the Conservatory Order should be granted.

Logical application of Constitution

In refusing to grant the Conservatory Order, the Chief Justice offered that he upheld the submissions of the AG, in that the application for the Conservatory Order (because of the time that it was made) can only relate to spending for the year 2015, and therefore, the application for the Conservatory Order did not relate to spending for 2014.
It should be noted, according to AG Nandlall, that in relation to spending for 2015, there are set legal and existing specifications, provided for by the Constitution and the Fiscal Management and Accountability Act, since for the said financial year, there has been no Appropriation Act or no Budget  for 2015.
These parameters for spending reside in the combination of Article 219 of the Constitution and the Fiscal Management and Accountability Act 2003, as they expressly provide the legal framework on a number of required areas: how monies are to be spent for this period; for what purposes those monies can be spent; and in what proportion. These unambiguously meant that the court cannot interfere with the Government’s Constitutional authority to spend in accordance with this formula.
The essence of the Chief Justice’s ruling is most pellucid, and eloquently captured in the wording of his written ruling:
“As the learned Attorney-General correctly submitted, the court has no jurisdiction to prohibit or restrict the exercise of any authority conferred by the Constitution or an Act of Parliament, since so to do would be to violate the doctrine of separation of power which indubitably inheres in the Constitution of Guyana. Only if the Respondents are acting or are likely to act ultra vires (beyond) the power or authority conferred by or under the Constitution or by or under an Act of Parliament that a prohibitory order in the nature of a Conservatory Order can be issued against the Respondents…The Court cannot nullify or limit in any way, whether directly or indirectly, the effect of the application of the Constitution which it has sworn to uphold. It is absolute that there can be no judicial subversion of the Constitution directly, indirectly or consequentially.”
In layman’s summation, the Chief Justice had to refuse to grant the assent to the Conservatory Order since under no circumstances the law provided for it.

Flip side

The AG further elaborated and exposed the folly if one were to consider allowing the Conservatory Order. He pointed out that a significant ground upon which this Conservatory Order was refused was that “If granted in the form as prayed for, it would be in effect an injunction against government spending, permitted by the Constitution and the Fiscal Management and Accountability Act…”
In everyday language, this translates, that in effect, what Granger was asking, is that the court stop legal government spending, meaning that he was asking the court to act illegally.
That is why, the AG intoned, that it is important to grasp the purport of the “final and decisive words of the Chief Justice in his ruling: “For the above reasons, the application for an interlocutory (provisional) Conservatory Order cannot be granted in the circumstances of this case and accordingly refused.”
On this point, AG Nandlall further shed light on why the Conservatory Order ought not to be granted, and was not granted. He highlighted that the State Liability and Proceedings Act of 1980 actually prohibits the court from granting any order that is either ‘prohibitory’ or ‘mandatory’ against the State or any State Agency and that a Conservatory Order is in effect an injunction.

Passing comments-no bearing on ruling-Obiter dicta pronouncements

The AG opined that the unequivocal ruling of the Chief Justice ought to have finished the matter, since that specific application was the only matter that was before the court. However, and quite unfortunately too, Chief Justice Chang chose to express his views on a number of other matters, which were neither germane nor felicitous to the issues that were before him for determination.
Minister Nandlall explained that these (other) issues will have to be determined at the hearing of the substantive action, and then only after pleadings have been filed and evidence led. These fundamental and mandatory procedural requirements did not take place, and that indeed no legal submissions were made either by the AG or Mr. Ashton Chase, S.C on these matters. He stated that this was so because they were not live issues before the court, since they did not relate and were not relevant to the application for the Conservatory Order (which was the only application that was before the court). The pronouncements of the Chief Justice, said the AG, on these matters are, therefore, obiter dicta (incidental and by the way) and are therefore not binding aspects of the ruling: “In short, they do not constitute the ratio decidendi, or the reasons for the ruling.

Chief Justice’s digression

According to the AG, the Chief Justice embarked upon an examination and interpretation of Articles 217 and 218 (3), even though these have no bearing on whether or not a Conservatory Order should be granted in relation to spending for the year 2015.
In his deliberation, AG Nandlall stated a number of factors supporting his contention that the order should be refused. He stated firstly, that expenditures of government for any given financial year, in which there has been no appropriation act or no budget, the constitution and the provisions of the Fiscal Management and Accountability Act, together create a formula for how monies are to be spent, during that given period, which means 2015.
Mr. Nandlall answered the logical question regarding what obtains in that period when there is no budget. He intoned that the Constitution, with its Fiscal Management and Accountability Act lays out in detail how monies are to be spent during this period.
Constitutionally, the Finance Minister has a right, and is vested with a power that is described as a ‘drawing right’ on the consolidated fund, to the tune of one-twelfth of what was approved in the previous year’s budget.
This, according to the minister, the government is aware of, and that “it intends to apply that formula, in its letter and spirit, as it has always done so … 22 years in government, and it intends to do so this year.”
This means that the court has neither power nor jurisdiction, to interfere with the government, as it executes its functions in this realm, in a most constitutional and statutory manner, the minister added. In fact, according to him, “Were the court to interfere in that formula or the government’s spending on that formula, then the judiciary would be trespassing in the province of the executive, thereby violating the doctrine of the separation of powers.”

Ambiguity and confusion

AG Nandlall declared that he realised quickly that various media houses created a most distorted view of what was the ruling by highlighting different portions of the written ruling of the Chief Justice. He said that his suspicion is that some media entities used “those portions which suited their particular agenda and so maybe magnified, exaggerated or even manipulated their output for their own purposes.” He stated that as soon as this happened, he responded and wrote a six page press release which he quickly disseminated.
Even though peeved with the unfolding of events and reaction, Mr. Nandlall was sympathetic towards the media fraternity, declaring that “it takes some degree of legal training to be able to decipher from a judgment, or to dissect a judgment in order to extract from it the decision itself and remarks which may be made by a judge in the course of this judgment.”
He emphasised that what should really be the essence of the matter is that the decision of the court is that the application for the conservatory order was refused, as the Chief Justice upheld (his) submissions, when he dismissed the application made by Granger.
The sad part, according to him, is that the tangential and incidental statements which the Chief Justice made, in the course of his ruling “were extracted, magnified and I would dare say manipulated by certain members of the media and aided and abetted by lawyers, who appeared for Mr. Granger, because somehow they are claiming victory and I see people talking about prosecuting and so on, so they aided and abetted the distorting process which emerged.”

Confusion-clarification

Minister Nandlall went back to the possible source of confusion when he revisited previous illegal budget cuts made by the opposition in the past, cuts that were restored by the court. He recalled that in July 2012 and January 2013, the Chief Justice gave a preliminary and final ruling respectively regarding budget cuts.
Minister Nandlall explained that he first sought from the court and got the declaration that the reduction of the estimates of the Minister of Finance, by the opposition was “unlawful, unconstitutional, null, and void and of no effect, therefore the budget cuts were basically unlawful.”
Annexed to this, was the second relief he asked for, that is an order, permitting the Minister of Financ, to restore those parts of the budget that were unlawfully cut. The chief Justice granted me the first declaration, a declaration that the budget cuts were unlawful, unconstitutional, ultra vires, null and void and of no effect.
In relation to the second release, the Chief Justice ruled there was no need for the court to grant any order, permitting the Minister of Finance to restore the budget cuts. This is because the Minister of Finance has the power to do so. Indeed the Chief Justice pointed to Article 218 (3) of the Constitution, and said that under that provision the Minister of Finance has the remedial power to spend the money cut from the budget and lay before the Parliament a Statement of Excess in relation to the monies which were expended thereof.
“The Chief Justice ruled in this way in a preliminary ruling handed down on July 12, 2012. As a result, and acting under the guidance of the Chief Justice, the Minister of Finance restored the money cut from the 2012 budget. This was done while that case was still pending in the High Court. The very lawyers who are appearing in the just concluded case appeared in that case. They made lengthy submissions alleging that the Government and the Minister of Finance acted illegally in spending those monies. I responded to those submissions. In his final ruling, made in January 2013, the Chief Justice again upheld my argument and overruled the argument of the other side, and reiterated the identical position of his preliminary ruling which is, that the Minister of Finance has the power   to spend monies cut from the budget utilising Article 218(3),” the AG explained.

Restored monies used for noble causes

When Finance Minister Ashni Singh restored a number of budgetary allocations on several occasions, the AG not only proffered the legality of the actions, but harped on the moral and noble factors of the restorations.