The Guyana Times of Sunday May 24 (New Ministries created by Granger illegal – PPP/C) reports former President Bharrat Jagdeo and former Attorney General Anil Nandlall as stating that “the formation of new Ministries is illegal since monies cannot be released to those entities, which are not represented in the Appropriation Act.”
This is a bit ironic. President Donald Ramotar did exactly that when he created the new Ministry of Natural Resources and the Environment and appointed Mr. Robert Persaud as the Minister. This was long before the convening of the Tenth Parliament and the passage of the Appropriation Act 2012, assented to on April 30, 2012.
The fact that the PPP/C created a new ministry before any Appropriation Act was passed does not itself make President Granger’s action legal, or illegal. In fact, the creation of a new ministry in 2012 by the PPP/C was as legal as the creation of new ministries by the APNU+AFC in 2015. Article 100 provides for offices of the Prime Minister, Vice-Presidents and Ministers of the Government as may be established by Parliament or, subject to the provisions of any Act of Parliament, by the President.
Article 120 of the Constitution gives the President the power to constitute offices for Guyana [and] make and terminate appointments to such offices…” There is no requirement for an appropriation Act before the creation of any ministerial or other constitutional office and It would have been useful for Mr. Jagdeo or Mr. Nandlall to have pointed out the illegality of President Granger’s combined acts.
The Cabinet has a number of lawyers, two of whom are affected by the creation of these new ministries. I have no doubt that all these lawyers would have considered the constitutional ramifications of the action by President Granger and offered their views to the Attorney General, who is the principal legal adviser to the Government.
Notwithstanding the legality of the appointments, it does appear to me that the Constitution forbids the expenditure of any money on those ministries without parliamentary approval. Article 120 goes on to state that “where the constitution of, and making of appointments to, such offices involve expenditure chargeable on the Consolidated Fund, such expenditure shall be subject to the approval of the National Assembly.”
In my view “approval” in this article can only be reasonably interpreted to mean prior approval, and not approval by way of any subsequent, supplementary Appropriation Act. On my interpretation, any expenditure on these new ministries, including any payments to and for the ministers and the supporting ministers, would be unconstitutional.