The section on Financial Procedures in the Standing Orders of the National Assembly is the same today as it was in 1969. In that year the Standing Orders were amended, no doubt to bring them in line with the provisions of the Independence Constitution of 1966. The Standing Orders had been approved by the same National Assembly which had approved the Independence Constitution.
The Financial Procedures provide for each head of expenditure to be “considered” and “decided” by the National Assembly. It specifically provides for amendments to increase or reduce any head of expenditure. In accordance with the constitution, it states that an amendment to increase may only be moved by a minister who must signify cabinet approval. No such requirement exists in relation to an amendment to reduce. Cabinet approval is therefore not necessary to reduce.
The constitutional foundation for the above powers given to the National Assembly by the Standing Orders was initially contained in Article 111 of the Independence Constitution. It provided for the Minister of Finance to lay before the National Assembly the estimates of revenues and expenditure and after approval by the Assembly for the Appropriation Bill to be laid. Article 218 of the current constitution contains the identical provision.
Essentially, therefore, the power of the National Assembly to increase or reduce the estimates has remained intact and unchallenged since Independence based on what appeared to be clear constitutional provisions. It probably remained unchallenged because the governing party has always had a majority in the National Assembly. It is only since 2011 that the situation has changed. The opposition now has a majority and has invoked the power to amend the estimates by reducing sums proposed for items of expenditure.
The reduction of sums in the estimates in 2012 was challenged in court by the government which sought many orders and declarations, the main one being that the reduction was unconstitutional. Having already given a preliminary ruling, Chief Justice (ag) Ian Chang gave his final ruling on January 29 by which he confirmed his earlier ruling that the National Assembly cannot amend the estimates by increasing or reducing them but that its power is limited to giving or withholding its approval.
The core, though not the entire basis, of the Chief Justice’s ruling rests on his interpretation of Article 171(2) of the constitution. The article prohibits the National Assembly, without the consent of the cabinet, from considering any bill which “makes provision” for, among other things, imposing any charge on the Consolidated Fund “otherwise than by reducing it” which is stated in the article in parenthesis. Similarly, it prohibits the considering of any motion “to make provision for any of the purposes aforesaid,” that is to say, considering a bill to impose a charge and the other things which Article 171(2) provides for but which should not detain us here.
The Chief Justice construed the phrase “for any of the purposes aforesaid” and the remainder of the article which provides for the motion, to mean that in considering a motion to reduce a charge to the Consolidated Fund the exemption from requiring cabinet consent for a reduction which applies to a bill does not apply in the case of a motion. In other words, while the cabinet’s consent is not required for a reduction of a charge to the Consolidated Fund by way of a bill, it is required in the case of a motion. This means that the Speaker can allow a bill proposing a reduction of a charge to the Consolidated Fund without cabinet consent but cannot allow a motion for the same purpose without cabinet consent. Hence the opposition cannot move such a motion since it would be unlikely to obtain cabinet consent. Since the estimates can only be reduced by way of motions, the opposition would have to obtain cabinet consent to do so, a highly unlikely event.
The Chief Justice went further and said that a charge can only be reduced by a bill and not by a motion. And in any event, Article 171(2) has nothing to do with the reduction of the minister’s estimates but rather with the reduction of a charge. This is puzzling because Article 171(2) provides for motions and the estimates are presented by a motion and the way to reduce items are by motions.
In seeking to cut the budget, which are the words being used in common parlance, what the opposition is in effect doing is moving motions to reduce items in the estimates. Therefore the actions of the opposition appear to fall within the parameters contemplated by Article 171(2).
The Chief Justice proceeds to explain that if the estimates are cut by the Assembly, the requirement for cabinet consent would become unnecessary and would be overridden, thereby defeating the requirement for cabinet consent which itself is unconstitutional. He therefore finds that as a matter of constitutional legality, the Assembly cannot amend the estimates. The Chief Justice concludes that the power of the Assembly is limited to withholding its approval for the estimates when they are laid before the Assembly for approval.
The effect of the decision of the Chief Justice is that the power of the National Assembly to “decide” has been curtailed or limited to approving or disapproving, not reducing or ‘cutting.’