Despite a decision by acting Chief Justice Ian Chang ruling against the opposition being able to cut the budget, former Speaker of the National Assembly Ralph Ramkarran says that agreement can be reached by the two sides.
“Stripping away the complexities from the Chief Justice’s analysis, a procedure can be discerned for approval of a budget. Based on his ruling, the opposition cannot cut or reduce, but may withhold its approval, for specific items in the budget,” he noted.
“Upon the conclusion of the consideration of the estimates, during which the opposition will no doubt withhold approval for substantial portions of it, the Minister of Finance can then submit amended estimates of a reduced sum to take account of the exclusion of those portions of the items, or sub-items, which the opposition does not support. The Appropriation Bill will then reflect the amended estimates and will therefore obtain opposition support. This is procedurally feasible and requires no negotiations,” Ramkarran, a senior counsel and former PPP stalwart, wrote in his Sunday Stabroek column yesterday.
Last month, delivering his long-awaited final decision, Justice Chang declared that the National Assembly acted “unlawfully and unconstitutionally” by effecting cuts to the 2012 budget estimates, after finding that its power is limited to either giving or withholding approval. According to Justice Chang, while the Assembly may approve or not approve the Finance Minister’s estimates of expenditure, it has no power to change them by either reducing or increasing them.
In June of 2012, Attorney General Anil Nandlall moved to the court to seek reliefs after APNU and the AFC, using their combined one-seat majority in the National Assembly, moved to reduce the estimates by $21 billion. Similar cuts were effected last year. The opposition had cited a lack of transparency and accountability in the explanations for the cuts to the allocations. Although President Donald Ramotar later assented to the budget passed by the National Assembly, Nandlall subsequently moved to the courts to reverse the cuts.
The opposition parties have indicated their intention to appeal the case and signalled that some estimates this year might not be approved in their entirety.
Parliament Office has said that while Justice Chang’s ruling is to be respected, it remains subject to the right of appeal and it is for the National Assembly to determine and direct the way forward.
Writing in his column, Ramkarran said that if the government and opposition extrapolate from the Chief Justice’s conclusions, a budget can be produced. He outlined possible scenarios of what could happen as a result of the decision.
“At the end of the debate the Minister could either discuss and come to an agreement with the opposition on the amount by which items of the estimates are to be reduced,” Ramkarran wrote while noting that this may be unlikely because of the “incomprehensibly bad” relations between the government and opposition.
“The Minister could also withdraw the estimates and substitute an amended, that is, a reduced version, in line with the opposition’s views. Alternatively, the Standing Orders can be suspended and the Minister there and then can propose the necessary amendments to the estimates. When the amended estimates are approved by the National Assembly, the Appropria-tion Bill will be amended by the Minister to reflect the reduced estimates as presented by the Minister and supported by the opposition. Such an approach would not violate the Standing Orders or the decision of the Chief Justice. The question that is put by the Speaker at the end of the debate on an item – “I put the question that Item … stand part of the estimates” – will not have to change. A ‘yes’ answer will be construed as ‘approved’ and a ‘no’ answer as ‘not approved’,” he wrote.
The Senior Counsel said that to achieve this the government will have to accept the reality that non-approval of whole items will take place which will then require the adjustment of the individual sub-item or sub-items within each item, to take into account the actual concerns of the opposition. “The government reduced the Appro-priation Bill last year to take account of reduced estimates. On this occasion it would amend the estimates first, then the Appropriation Bill,” he said.
“Therefore, a premature return to the electorate need not ensue. And because both government and opposition have been equally affected by having to work out and apply new and additional procedures in dealing with the estimates and arriving at a budget, it cannot be argued that the decision objectively favours the government or hinders the opposition, or vice versa,” Ramkarran wrote asserting also that while a final decision is being awaited from the Court of Appeal or the Caribbean Court of Justice, if there is an appeal to the latter, the budget conundrum can be resolved.
Meantime, writing on Justice Chang’s ruling in last week’s column, Ramkarran said that 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 Indepen-dence Constitution, he pointed out.
“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,” he asserted.
The Senior Counsel noted that 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, he noted.
“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,” Ramkarran said.
Noting Justice Chang’s ruling, he pointed out that 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.
“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,” Ramkarran said.
He pointed out that 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 former Speaker said.
“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’,” he said.