For several decades, the Standing Orders of the National Assembly preserved and protected by successive Constitutions have given to the National Assembly control over spending proposed by the Minister of Finance. But in 2012 following the historic November 2011 elections in which the PPP/C government lost the majority in the National Assembly the stage was set for the opposition in the Assembly to assert its powers over the Budget.
Under the Standing Orders, following the presentation of the Motion for the approval of the Estimates by the Minister of Finance, the National Assembly adjourns for not less than two days. Upon resumption the Motion is debated for five days after which the National Assembly constitutes itself into a Committee of Supply to consider, amend, increase, decrease or approve the Estimates.
This process, hallowed by constitutional principles and parliamentary practices, was followed strictly by the Committee as it perused the 2012 Estimates. Using the procedures set out in the Standing Orders, a number of heads of expenditure were cut. When the National Assembly resumed on April 26, 2012 the Finance Minister reported to the reconvened National Assembly that “the Committee of Supply considered the Estimates of Expenditure for the financial year 2012 and approved of them as amended” (emphasis added). The National Assembly then voted for the Motion by way of Act No 3 of 2012 which was assented to by the President on April 30, the day on which all spending authority would have expired.
On June 4, 2012, the Attorney General brought an action in the Constitutional and Administration Division of the High Court against the Speaker and the Leader of the Opposition. The Attorney General sought ten (10) declarations that the cuts were “an abrogation of the doctrine of separation of powers, unconstitutional, unlawful, null, void and of no legal effect”. By way of Affidavit, the Attorney General also sought an interim order that the Minister of Finance be at liberty to make advances from the Contingencies Fund to restore the cuts.
In a decision delivered on July 18, 2012 the Chief Justice (ag.) wrote that the court (and the decision) was concerned with the ex parte application. For clarity the court also closed its written decision with the words “Since the matter is in its preliminary stage and there is no final determination, the views expressed at this juncture are not final.”
In an argument that defied common sense, let alone logic the Attorney General sought to convince the Court that in making any amendments, the Assembly was proposing new Estimates. Unfortunately, having delineated the scope of its decision, the Court in what in law is referred to as obite rdicta (remarks made in the course of a decision that are not binding) responded that the Constitution clearly does not give the National Assembly the power to determine the estimates for its own approval. On page 14 of the decision the court assigned to the National Assembly as its only constitutional responsibility in respect of expenditure “an oversight or gatekeeping function of approval or non-approval”.
The court further added (page 15) that “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……” and that if the National Assembly were to cut or reduce the estimates of expenditure this would mean that those estimates would be as determined by the National Assembly and not by the Minister. Apparently the court is of the opinion that the National Assembly could reject the entire estimates of expenditure but not any programme or line item in the Estimates. Drawing inspiration from the Australian constitution the court states in what is described as a summary, that the “act of cutting or reducing the estimates of expenditure presented by the Minister was unconstitutional”.
Fortunately, what saved the day for the Opposition was the fact that it was the Minister himself who had presented the revised Motion, which was voted on by the National Assembly and assented to by the President.
But it seems that much damage has been done and that the Minister of Finance, by various means, has restored all the cuts made by the National Assembly, apparently on the advice of the Attorney General. This raises serious financial management and constitutional issues requiring investigation by the National Assembly followed by action against the Attorney General and the Minister of Finance if violations have occurred.
With regards to the 2013 Budget, if the National Assembly agrees to recognise the provisional decision of the Court, there will be no need for it to reconstitute itself as a Committee of Supply. The opposition should simply give notice of its rejection of the Estimates to the Speaker, who must then rule that the Minister must go back and return with new Estimates.
Alternatively, the Speaker may rule that the court gave no final decision on the application by the Attorney General on the 2012 cuts and that until such time the National Assembly will proceed with its business in accordance with the Constitution and the Standing Orders.
The uncertainty caused by the omission surfaced again around Budget Day. On March 18 the Guyana Chronicle quoted the Attorney General as declaring that “any attempts to cut the Budget this year, by the combined Opposition, will again bring it in conflict with the Constitution.” And fellow Attorney-at-Law and MP Khemraj Ramjattan was in the press on Budget Day claiming the right as an MP to vote on budgetary allocations. They both cannot be right on this issue.
The Court having given a provisional ruling on a matter brought before it has a duty to set a date for hearing at which the attorneys for the parties would address the Court. This uncertainty has lingered for far too long.