Both sides are claiming victory after acting Chief Justice Ian Chang’s recent finding that government spent $4.5 billion in violation of the constitution, with Attorney General (AG) Anil Nandlall saying the judge spoke on issues not before him for decision, while attorney Basil Williams says the Finance Minister can face a criminal charge.
In his ruling, Justice Chang refused an application made by opposition leader David Granger for a conservatory order to stop “unauthorised” expenditure, although he found that controversial expenditure last year of $4.5 billion by the government was unconstitutional.
However, in a six-page press release issued yesterday, Nandlall stressed that the conservatory order that was refused was “the only matter” before the court.
“Unfortunately, the Chief Justice chose to express his views on a number of other matters which were not issues that were before him for determination,” he, however, said, adding that these are issues that will have to be determined at the hearing of the substantive action and only after pleadings have been filed and evidence led. “Indeed, no legal submissions were made either by the Attorney General or Mr Ashton Chase, SC on these matters. The reason is simple. 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,” he added.
He said too that the Chief Justice embarked upon an examination and interpretation of Articles 217 and 218 (3) of the Constitution. “Again, I emphasise that the only matter with which the court was seized at this point and time was whether or not a Conser-vatory Order should be granted in relation to spending for the year 2015, only Article 219 of the Constitution and the relevant provisions of the Fiscal Management and Accountability Act 2003 were relevant. In this factual matrix, Articles 217 and 218 have no relevance,” he said.
Nandlall stated that in interpreting Article 217 of the Constitution, the Chief Justice noted that except where expenditures have been charged upon the Consolidated Fund by the Constitution or an Act of Parliament, moneys cannot be withdrawn from the Consolidated Fund without authorisation by an Appropriation Act (except under Article 219).
Addressing Article 218 (3), he said the Chief Justice found that there can be an avoidance of a breach of Article 217 by the utilisation of a Supplementary Estimate. “Fundamentally, he also found that a breach of Article 217 can be cured or remedied by utilising a statement of excess as authorised by Article 218 (3),” he said, adding that this mechanism was a “curative measure” to a violation of Article 217. Therefore, he added, the Constitution itself provides a curative measure to remedy its violation.
“However, and I dare say strangely, the Chief Justice then proceeds to draw a distinction between advertent and inadvertent expenditure for which Statements of Excess can be laid,” Nandlall noted, adding that he further pronounces that if the over-expenditure or over-withdrawal was “advertent” then it cannot be remedied by the curative aspect of Article 218 (3).
“I respectfully part company with the learned Chief Justice on this aspect of his interpretation. Article 218 (3) in its width, ambit, and latitude makes no distinction between ‘advertent’ and ‘inadvertent’ expenditure or over withdrawal. Indeed no such or similar words of limitation are either expressed or can be implied in the language of Article 218 (3). Therefore, that restrictive interpretation runs afoul of the express language of Article 218 (3),” the AG said.
He said that this is not the first time that the Chief Justice had cause to interpret Articles 217 and 218 (3) of the Constitution in this very context, while citing the preliminary and final rulings given in the budget cuts case. “Importantly, between the time of the preliminary and final ruling the Minister of Finance, in almost identical circumstances, withdrew moneys not approved by the National Assembly and used the same and utilised Article 218 (3) to do so, laying Statements of Excess before the National Assembly in relation thereto in compliance with the said Article of the Constitution.
Nandlall noted that presently the government awaits the hearing and determination of the substantive action where the opportunity will be provided for its legal advisers to present arguments on the issues which are the subject of the Chief Justice’s remarks.
Meanwhile, Williams told Stabroek News that despite the unsuccessful attempts by AFC leader Khemraj Ramjattan last June to have a criminal charge brought against the minister, he is confident that the matter would not be thrown out again.
He, however, said while the complaint cannot be dealt with right now, it will be under the next government.
Williams, who was the lead attorney for Granger, maintained yesterday that he has won the case despite the refusal of the court to grant the conservatory order.
According to him, Granger’s position is that parliament disapproved $37 billion worth of programmes and the Minister of Finance came with a statement of excess in June admitting that he spent $4.5 billion on disapproved programmes. He said the action that was filed was for a declaration that the spending was unlawful and unconstitutional. “Since he indicated that he spent $4.5 billion we asked for a conservatory order to preserve the status quo until the hearing of the case so that they wouldn’t spend the balance of the $37 billion. That is our case,” he noted.
Williams went on to state that they never asked the court for anything relating to 2015. He said their contention was that government spent the money in breach of the doctrines of the separation of powers. “We are saying that by the time the action came up to be heard they would have finished spending the $37 billion. The conservatory order was prayed for in order to prevent them from spending the balance of the $37 billion,” he said.
According to Williams, Nandlall admitted to the court that government had spent all of the unapproved sum. He said that he had queried as to why this information was not contained in the judgment but was told that by Justice Chang that “it was not put into the affidavit.”
Williams, however, said given that Nandlall said all of this in the presence of the Chief Justice then he “ought to have acted on it.” The attorney went on to note that Justice Chang is saying that he did not grant the conservatory order because he couldn’t stop the government from spending in 2015. “We never asked him to do that. The AG lost the case. Our case was once the Parliament disapproved or not approved of spending they cannot spend. That is our case and he [Justice Chang] has agreed with us,” Williams stressed.
He reiterated that “there is nothing that the AG won. We haven’t asked the Chief Justice for any declaration that they can’t spend money in 2015. We are talking about the $37 billion.”
Told that the judge did not grant the conservatory order that they sought, Williams stated, “he granted the order that I was looking for; that the spending, despite the disapproval or the not approval of the Parliament, was unconstitutional. That is the rationale of the case. Anything else about the conservatory order…that is obiter dicta because that is not an issue raised in claim,” he said, while adding that if they need to file something as it relates to 2015, it will be filed.
In his ruling, Justice Chang noted that Granger’s case, filed in December, pertained to spending in the year 2014, which has already elapsed, whereas expenditure in 2015 is governed by specific constitutional provisions. The court held that the breach of constitutional authority regarding expenditure in 2014 is not a proper basis to fear that the government would exceed the limits of their authority in respect of any other period. Granger had sought the conservatory order to halt any unauthorised spending due to concerns about government spending public monies without any parliamentary scrutiny after Parliament was prorogued by President Donald Ramotar on November 10, 2014.