The abrupt resignation earlier this month of Court of Appeal Justice Rabi Sukul which I addressed last week on this Blog continues to reverberate in the community, along with two other issues with implications for the judiciary. The first involved unusually swift justice dispensed in the case of baby-sitter who admitted to slapping her one year old charge, the daughter of a magistrate mother and a lawyer father. Without even asking for a Probation Officer’s report, the magistrate sentenced the legally unrepresented teenager to five years in prison. One section of the press had earlier reported the sentence as sixty months but that appears not to be correct.
The second issue raises the question whether a lawyer admitted to practise in the Courts of Guyana who is subsequently convicted in another jurisdiction should be allowed to return to practise in the Guyana Courts. Both in this and the Justice Sukul’s matter the (alleged) misconduct took place outside of Guyana.
There is a striking contrast between the considerable media attention and feedback to these issues and the silence of the major stakeholders over the challenges facing the judiciary. Even if this matter had involved a puisne judge it would have been serious enough to warrant attention. In this case a Court of Appeal Judge and the constitutional body the Judicial Service Commission (JSC) are involved but yet there is virtual silence from the head of the Bar, Minister of Legal Affairs and Legal Adviser to the Government.
If instead of joining the blame game, the Attorney General could remind the President that the Constitution requires him to make a nomination to the JSC after meaningful consultation with the Leader of the Opposition, he would at least be signaling that he and the Government are finally prepared to give the judiciary the attention it warrants. Indeed the Speaker and the Attorney General should commit their offices to recommending persons to fill the vacancies in the Judicial Service Commission, particularly in the light of a large increase in the number of judges announced by the Attorney General.
As an aside, attorney-at-law Mr. Mortimer Codette in a letter to the press misinterpreted my call for a Commission to inquire into the Sukul’s debacle. He cited at length a provision of the Constitution when such an inquiry is appointed and operates under the Commission of Inquiry Act. I remain convinced that such an inquiry is the best guarantee against a repeat of the failure of governance in the judiciary.
I turn to today’s topic.
Budget Cuts Case
I begin today a review of the decision given by the Chief Justice (ag.) Mr. Ian Chang in the highly charged constitutional case No. 216 – W 2012 which because of its subject-matter has come to be referred to as the Budgets Cut case. In fact there were three decisions in this case: the first given in the preliminary stage on July 18, 2012; the second a procedural strike out by the court, acting on its own initiative (suo motu), of defendants Mr. David Granger and Dr. Ashni Singh; and the third, the final ruling in the matter which was handed down on January 29, 2014.
I hesitated to comment on the decision because of the possibility of an appeal and because I was one of the legal counsel on record for the Speaker Mr. Raphael Trotman who is named as the first-named defendant in the action brought by the Attorney General. As a courtesy to the Chief Justice (ag.), I advised him of my intention to critique his judgment.
For a case of this importance and implications the sixty-five legal-sized pages of double space, large font size which the two substantive rulings run cannot be considered long. Indeed I believe in the Court’s apparent effort to avoid a lengthy ruling, it has left too much room for additional controversies and interpretations. Mr. Ralph Ramkarran, a Senior Counsel and former Speaker of the National Assembly in one of better contributions on the ruling and one with a nuanced opinion on it, gives an example of what the ruling means in practice that does not seem consistent with the actual decision. See Resolving the Budget Conundrum (Stabroek News February 14, 2014). Now if someone like Mr. Ramkarran can have difficulty with the ruling, there must be considerable room for improvement in the way it was written.
Before expressing any views on the decision however, let us see the factual background to the case. On March 30, 2012, the Minister of Finance presented to the National Assembly the Estimates for 2012, as required under Article 218 of the Constitution of Guyana. In keeping with the Standing Orders of the National Assembly, the Estimates were referred to a Committee of Supply, made up of all the members of the Assembly but not sitting as the Assembly. In that forum, on April 25 and 26, opposition members Messrs. Ramjattan and Greenidge proposed certain amendments reducing a number of line items in the Estimates in accordance with Standing Order 76. The proposed amendments were carried and when the National Assembly resumed the Minister of Finance presented to the National Assembly an Appropriation Bill “as amended” which was unanimously approved by the National Assembly and assented to by the President.
Having voted for the Appropriation Bill that included the “cuts”, the Attorney General on behalf of the Government on June 4, 2012 asked the Court for the following reliefs:
1. Nine specific declarations that all the cuts were an abrogation of the doctrine of separation of powers, unconstitutional, null, void and of no legal effect.
2. An order vacating or setting aside the reduction of the Estimates and expenditure put and carried in the Committee of Supplies.
3. That the Minister of Finance be at liberty to make advances out of the Contingencies Fund to restore the cuts.
3. Such further or other reliefs.
The preliminary decision also records that the Attorney General by way of an ex parte application sought an interim order that the Minister of Finance be at liberty to make withdrawals from the Contingencies Fund to restore the cuts.
Most of the arguments took place at the preliminary stage and were led by the Attorney General and Mr. Seenauth Jairam, S.C. who practices in Trinidad and Tobago, for the Government and Mr. Rex McKay, S.C. and a team of attorneys including Messrs. Khemraj Ramjattan, Basil Williams, and Roysdale Forde for the Speaker and Mr. Granger. Mr. Ashton Chase, S.C. represented the Minister of Finance.
The arguments took place over four days and ended on July 10. A written decision, described as “views expressed” in preliminary stages, was handed down one week later. The court ruled as follows:
1. That the act of cutting or reducing the estimates of expenditure was outside the constitutional remit but that the Appropriation Bill passed by the National Assembly and to which the President assented “was not unconstitutional”.
2. It “decline[d]” to order any interim relief in relation to the cuts sought by the Attorney General, since the court cannot substitute itself for the Minister who is required to bring a supplementary estimate or statement of excess or make drawdowns from the Contingencies Fund.
3. That the National Assembly did not perform its duty under Article 222 A (a) of the Constitution when it purported to reduce the allocation for the Ethnic Relations Commission to $1. The Court therefore ordered the Minister of Finance to allow all expenditure necessary for the maintenance of the ERC to be charged directly upon the Consolidated Fund until the National Assembly determined a lump sum by way of a subvention.
4. Each party to bear its own cost.
The second and final decision ran 22 pages of which the first ten was a restatement of the action and reliefs sought and the court’s justification for excluding Mr. Granger and Dr. Singh from the action. The substantive rulings in this decision set out on pages 18 – 20 are as follows:
1. While the National Assembly may approve or not approve the Minister’s Estimate of expenditure, it has “no power to amend those estimates by way of reduction (or of increase)”.
2. The Standing Orders are mere internal rules and cannot amend the estimates of the Minister.
3. The National Assembly through its Committee of Supply acted unconstitutionally when it purported to cut the Minister’s budget.
4. The power of the National Assembly is limited to giving or withholding its approval for the Minister’s estimates of expenditure.
Next week I will begin my analysis of the decision and identify what I consider are some of the strengths, weaknesses and inconsistencies in the arguments and the decision of the Court, why I think an appeal will succeed and consider the danger to the country of having a one-man Constitutional Court.