Authority of the Assembly to make Amendments to or to Effect Cuts to the Estimates
3520 15 Apr, 2013
Mr. Nandlall: I wish to begin by assuring Members on the other side that I am not at all oblivious of the powers of a majority in this National Assembly. What I have been relentlessly trying to do is to ensure that that majority stays within the four corners of our Constitution. We are big people in this House; we are educated people and we are leaders of our country. We have to accept and send a strong signal to our people, and possibly to the world, whether we are going to accept fundamental truths and fundamental constitutional realities by which we are bound.
The exercise, in which we are largely engaged in here, is essentially trying to interpret a ruling of the Chief Justice of this country and which is written, by the way, in clear English language, and we are trying to twist it to suit our political respective ends. That is an affront to the judiciary of our country. We have to accept whether we are going to continue, as a civilised nation, to be bound by certain foundational principles that our legal system embraces. Those principles are that there is a Constitution that creates this Parliament and that creates a number of institutions which regulate and distribute governmental power among sectors of this country. If we are not going to subscribe to then we must say so. The Constitution of our country declares itself to be the supreme law of this land and all of us, irrespective of whether we are minority or majority, we owe allegiance to that document, and the supremacy and sovereignty of that document, and nothing else.
I begin therefore by revisiting certain foundational principles. Principles, which I consider to be trite, axiomatic, rudimentary, elementary, but seem to have been eluding us, whether seemingly, whether wittingly or whether deliberately. We begin by dealing with the Constitution itself. My learned friend, Mrs. Backer, perhaps was being metaphoric and engaging in linguistic imagery when she said this is not the Constitution. This is the Constitution of the Republic of Guyana and this is the document that creates this Parliament. This document, by article 8, states that it is supreme. Now this document is not different or unique, in that respect, from Constitutions which have been passed down by Westminster when each of the Commonwealth countries obtained independence, beginning with India, most of Africa, South Africa, Australia, Ceylon, now Sri Lanka, and the entire English Commonwealth.
Mr. Speaker: One word of caution, New Zealand does not have a written Constitution.
Mr. Nandlall: It is with the exception of New Zealand and Canada. All of us, we share a document that has a common document. That document has been, and the powers of that document vis-à-vis a parliament created by that document, the subject of repeated judicial analysis and pronouncements. It is recognised in Commonwealth jurisprudence that India leads the way, by far, in terms of constitutional jurisprudence of the Commonwealth. Perhaps the foremost authority of constitutional law in the Commonwealth is Dr. Durga Basu and his work is titled, Commentary on the Constitution of India, the 8th edition. It states this, at page 5492:
“A legislature created by a written Constitution must act within the ambits of its power as defined and subject to the limitation prescribed by the Constitution. Any act or action of parliament, contrary to the constitutional limitation, will be voided. The Parliament or state legislature cannot claim total immunity. Parliament, like other organs of the state, is subject to other provisions of the Constitution. Under our Constitution every action of every authority is subject to law, as nobody is above the law. Parliament is not an exception to this universal rule. In that case the court has held that the claim of absolute immunity cannot be accepted.”
This position obtains in India as it obtains absolutely without any modification, whatsoever, to Guyana. That is the position of India.
I turn now to closer to home. In the case of Jaundoo and the Attorney General of Guyana, 1968, 12 West Indians Report, at page 221, Chancellor Stoby speaking about the Constitution of Guyana, vis-à-vis its supreme status. Obviously, the Honourable Chancellor is speaking of the independent Constitution. The Constitution has changed but the structure has remained the same, and the feature, in particular of its supreme status, has remained unaltered. This is what Chancellor Stoby said:
“When internal self-government was introduced and when independence was achieved all those safeguards, which had protected colonial people from oppression, were engrafted into the Constitution and are all fundamental rights. By inserting them in the Constitution, the result which flowed was that Parliament became subject to the Constitution.”
I repeat for emphasis.
“By inserting them in the Constitution, the result which flowed was that Parliament became subject to the Constitution. It was supreme and yet not supreme. Parliament can alter the Constitution in the manner prescribed by the Constitution. But until it is altered no legislation can be enacted which infringes a fundamental right. Returning to the illustration already given should Parliament legislate to provide that in all criminal trials an accused is presumed to be guilty the Courts can strike down the this legislation as being ultra vires the Constitution. Where, however, Parliament as enacted no such legislation and a judge or a magistrate conducts a criminal trial on the assumption that an accused is presume guilty it is not the State which is infringed a fundamental rights but the functionary concern has ignored the common law of the land.”
Substitute there the judge or magistrate and put in the parliament and the position applies, mutatis mutandis.
In similar vein, I move to Trinidad and Tobago in the case of Collymore and the Attorney General, 1967, 12 West Indian Report, at page 5, Mr. Wooding, Chief Justice, perhaps one of our more pre-eminent jurists in this part of the world, speaking of the Trinidad Constitution, said:
“Section 36 of the Constitution provides, subject to the provisions of this Constitution, parliament may make laws for peace, order and good government of Trinidad and Tobago.”
In my judgement the section means what it states and what it states very clearly is that the power and authority of the parliament to make laws are subject to it provisions. “It” means the Constitution. Parliament may be therefore sovereign within limits there by set, but if and wherever should it seek to make any laws, as the Constitution forbids, it will be acting ultra vires.
Then there is another quote from Mr. Phillips, Justice of Appeal, in the same case. Mr. Phillip is quoting now from Professor de Smith and he had this to say, speaking of Constitutions in the Commonwealth:
“Among the characteristic features of modern Commonwealth Constitutions are the limitations of parliamentary sovereignty guarantee of fundamental rights, judicial review of constitutionality legislation. The aim of many of these provisions is to capture the spirit and practice of British institutions. The method of approach involved the rejection of British devices and the imposition of un-British fetters on the legislative and executive discretion.”
Obviously the author here is speaking about the difference between the position which obtains in Great Britain, which is a position that Parliament is sovereign and supreme, compared to the position which exists in the Commonwealth where the Constitution is supreme.
I wish Sir, also… [Mr. B. Williams: Talk about the cuts.] I am dealing with cuts.
Mr. Speaker: I am actually - I do not want to say enjoying - interested. I do not want the Minister to feel rushed or fettered or circumscribed in anyway.
Mr. Nandlall: Thank you very much Sir. Let me at this juncture congratulate Your Honour for the agility of intellect demonstrated when Your Honour swiftly pointed out that in the case of Esther Pereira the Honourable Justice Claudette Singh, who was within the precinct of this House, ruled that an Act, which was unanimously passed by this House, a unanimously passed law by this House, collided with the Constitution. The argument advanced by the attorneys-at- law for the respondent in that matter - I speak of former Attorney General, Mr. Doodnauth Singh; I speak of former Speaker, Mr. Ralph Ramkarran, and I speak of my learned friend, who was on this side then - all argued that there was an agreement, between the parties in the House, that culminated in the enactment of that provision.The judge did not entertained it. She said that there is no power in this Parliament to arrive at any form of pact or agreement that will violates the Constitution.
The judge ruled that articles 159 and 59 of this Constitution state that once a citizen is 18 years and upwards, he or she is resident in Guyana and is registered to vote, he or she has a constitutional right to vote and no law, passed by this Parliament, unanimous or majority, can add an additional requirement without meeting that constitutional litmus test. The judge struck the legislation. [Interruption from the Members of the Opposition] Sir, can I get your protection?
Mr. Speaker: Hon. Members, the Attorney General is under the protection of the Speaker.
Mr. Nandlall: In our system the judiciary is reposed with the power of being the guardian of our Constitution, to look at the conduct of the executive, to look at the conduct of the Parliament and to ensure that there is no violation of that Constitution by any agency of the State. That is why everyday - I have said it before - this Attorney General is sued twice per day. Each time I am named a respondent it is the executive being taken to court and it is the court that has to determine whether the executive has violated this document. The Parliament, in that constitutional matrix, is no different. If this Parliament acts in a manner, which it is believed to have violated the Constitution, then that place called the judiciary is the place that we have to go and that is the point Mr. Wooding, Chief Justice, made in the case of Collymore and the Attorney General.
He said this at page 9:
“I am accordingly in no doubt that our Supreme Court has been constituted and is the guardian of the Constitution, so it is only within its competence…”
It is only that place has the competence.
“…but also its right and duty to make binding declarations and if and whenever warranted that an enactment passed by this Parliament is ultra vires and therefore void and has no effect because it abrogates or abridges or infringes or authorises the abrogation abridgement or infringement of one or more provisions of the Constitution.”
There is no other authority, which has the power under our system, that can second-guess the rulings of that court when it comes to the Constitution. That puts Your Honour in a very precarious position. I say it with the greatest of respect, Sir, because Your Honour suffers from being in the invidious position of being asked now to essentially review the ruling from a tribunal, which the Constitution has appointed, as the sole arbiter of whether it is breached or not. I do not how your honour will extricate yourself from this conundrum.
Mr. Speaker: Does the High Court have a supervisory jurisdiction over the National Assembly of Guyana?
Mr. Nandlall: That is correct.
Mr. Speaker: I need you to address me on that.
Mr. Nandlall: But once that supervisory jurisdiction has been invoked…
Mr. Speaker: You are saying that it does have a supervisory jurisdiction over this House.
Mr. Nandlall: Yes Sir. That is what all the authorities… I will go on to quote more. When that supervisory jurisdiction is activated and a ruling emanates, it is not opened to any institution in this land to second-guess it. Hence that system, the judicial system, has in it a system hierarchically structured to allow for challenges to be made against its own ruling. We can go from the Magistrate’s Court all the way to Port of Spain, Trinidad and the Caribbean Court of Justice. I will deal with the appealing later, but I just want to make that fundamental point and no appeal, no form of challenge, was filed against the Chief Justice’s ruling. I heard it was being said. [Interruption from the Members of the Opposition.] Let me deal with that. [Mr. B. Williams: You all do not talk too much because he will want to start dealing with what we say.] That is correct.
The Chief Justice made an interlocutory ruling; I filed the application. I filed a ten-day writ and I went ex parte for certain interlocutory orders and a ruling was made. Therefore that ruling was an interlocutory ruling and it is appealable to the Full Court of the High Court of the Supreme Court of Judicature. That is basic law, Sir, and you know that, but I am saying it for the Leader of the Opposition, because I do not think that he was so informed, that the decision of Justice Chang was appealable to a court called the Full Court of the Supreme Court of Judicature, which is a court within the High Court comprising two or more judges, who are specifically empowered, to deal with the non final ruling of a single judge. When the Honourable Chief Justice sat, he sat as a single judge in an interlocutory matter, meaning it was not a final matter. So the argument, which is being peddled, that this is a preliminary ruling and therefore it cannot be appealed, is one that is frivolous, vexatious and puerile.
The second argument, which I have heard, is that because of the preliminary nature of that ruling, somehow by some jurisprudential gymnastic, has lost its potency. I do not want to get too figurative in my speech. Every first year law student knows, and most laymen know, that a preliminary ruling normally manifests itself in the ordinary course of things as an injunction. Every time an injunction is obtained it is a preliminary ruling. Seriously, can one argue sensibly that that injunction is unenforceable because it is preliminary? Could one argue that? But that is the type of arguments that I have heard emanating from the other side. I will not leave it there. I will refer to this honourable House a case which deals with the nature of a court ruling.
The case is Isaacs and Robertson. This case is reported… [An Hon. Member: It is China we are going to.] I have not reached China. I am going there. We are now in the Privy Council Sir. This is a case emanating from the Court of Appeal of the Eastern Caribbean States. Isaacs and Robertson, it is reported at 43 West Indian Report, at page 126, and the Privy Council quoted a case from England, the judgement of Lord Justice Romer in a case called Hadkinson and Hadkinson. The issue was that, in that case, a preliminary order was granted and the lawyer in the matter took it upon himself to advise his client that that order was irregular - “Do not bother with it.” That was the issue and contempt of court proceedings was filed. The Privy Council, following the House of Lords in Hadkinson and Hadkinson, 1952, House of Lord’s case, at page 228, said:
“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. “
The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an Order believes it whether null and void, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that suitors or their solicitors could, themselves, judge whether an Order was null and void or whether it was regular or irregular. They should come to the Court and not take it upon themselves to determine such question. The course of a party knowing of an Order which was null and irregular and who might be affected by it was plain. He should apply to the Court that it be discharged. As long as it exists, it must not be disobeyed. Such being the nature of this obligation, two consequences would generally flow from its breach. The first is that anyone who disobeys an order of Court is in contempt and may be punishable by committal, attachment or otherwise.
The obligation to obey a Court Order and a Court ruling is plain, unqualified and unconditional. We cannot seek refuge in conjured up arguments that it is preliminary. It is embarrassing for lawyers to say that, really embarrassing, but I go back to my original journey.
We continue to speak of the Court’s role vis-à-vis the Constitution. The next case I wish to cite is the Methodist Church in the Caribbean and the Americas against Simonet 2000/59 West Indian Report at page 13 where their Lordship, Her Majesty’s Privy Council, rendered the following advice, “Article 2 of its Constitution…”, speaking of course of the Constitution of the Bahamas – so I am moving across to the Bahamas now, I just left England – “…provides,
“This Constitution is the supreme law of the commonwealth of Bahamas…”
This is similar to our Article 8. Article 2 further provided:
“Subject to the provisions of this Constitution, if any law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”
This is identical to the position in Guyana. Chapter IV of the Constitution made provision for a Parliament of Bahamas, just like our Constitution, comprising Her Majesty, a Senate and a House of Assembly. Our Parliament is differently structured.
Article 52 provided:
“Subject to the provisions of this Constitution, Parliament may make laws for the peace order and good government of Bahamas, identical powers imbued by our Constitution to this National Assembly. Thus, in Bahamas, the first general principle mentioned above is displaced to the extent necessary to give effect to the supremacy of the Constitution.
Importantly, the Courts have the right and duty to interpret and apply the Constitution as the supreme law of the Bahamas. In discharging that function, the Court will, if necessary, declare that an Act of Parliament inconsistent with constitutional provisions is to the extent of that inconsistency void.”
I come now to the Commonwealth of Dominica. I am coming closer and closer to home. In this case, the question was frontally raised as to what powers the Court has vis-à-vis the proceedings of Parliament. Your Honour expressed your own views on this matter, but permit me, Sir, to refer Your Honour to the judgement in Saborache against the Speaker of the House of Assembly and the Attorney General of the Commonwealth of Dominica, 1999/3, Law Reports of the Commonwealth, Page 584. In that case, a question arose as to whether the Court has jurisdiction to enquire into the existence an extent of alleged privilege. The appellant was substantially dismissed. I would go back the quotation itself which I want to refer Your Honour to, respectfully. This is the Court of Appeal of Dominica speaking:
“I now address the question of whether the Court has jurisdiction to enquire into the affairs of the House of Assembly. Mr. Astafan, Learned Counsel for the appellant, in his skeletal argument, said that the Courts have a responsibility and a duty to ensure that every authority, inclusive of the House of the Assembly, act in accordance with legislation, statutory rules and laws. He submitted that if the House of Assembly purports to suspend a Member for an alleged breach of privilege which does not exist in law, but purports to do so in complete disregard of the very Standing Orders made by the House, the Court is obliged to act and afford the aggrieved Member appropriate relief. With this I am in full agreement.
I shall go further and say that the Constitution of the Commonwealth of Dominica is the supreme law of the land. The House of Assembly gets its authority from the Constitution. The Court, being the sentinel of the Constitution, must act and has a duty to act when any authority acts in nonconformity with any rules or law which it derives under the very Constitution.”
Sir, we do not want clearer language than that.
I move now, Sir, to Hong Kong. I am getting closer to China. In the case of Rediffusion, Hong Kong vs. the Attorney General of Hong Kong, 1970, Appeal Cases, page 437, Lord Diplock, one of the more pre-eminent law lords said this at page 1155:
“Although the argument that a Court of justice had no jurisdiction to enquire as to what is done within the walls of Parliament had been advanced at the hearing in the Supreme Court, it received no mention in the judgment. Both that Court and the Judicial Committee of the Privy Council treated it as automatic that the Court had jurisdiction to enquire into and grant relief for unlawful conduct by members of a legislative assembly in the course of proceedings in the Chambers.”
I move now, Sir, to the High Court of South Africa. In Delili and another vs. the Speaker of the National Assembly, a 1998 case, reported at BCLR page 916. It states, quoting the relevant section of the South African Constitution:
“The House may regulate its own procedure and may, in particular, make rules for orderly conduct of its own proceedings.”
It is very similar to our Article 165. The Judge is now speaking at page 398:
“It does not however follow that the Assembly can do so in a manner inconsistent with the Constitution.”
Those who are relying on Standing Orders, I ask to bear this in mind because I am going to deal a little more expansively when I get to deal with the Standing Orders which are relied upon. But the case is saying that if those in the exercise of the power conferred on the Assembly, those powers to make rules remain subject to the Constitution and subject to constitutional review by the Courts. So, whenever this Parliament acts, albeit may be acting in conformity with some Standing Orders, but in so doing it violates the Constitution of land, the Court remains that authority that has an overarching arm to come in and review, though it may be internal proceedings, to ensure that this document, the Constitution, is not violated.
Let me speak to one, at the same time, about Standing Orders because my Friend has made great issues of Standing Orders. I now move to the jurisdiction of Malawi. I am leaving South Africa, Sir, and going to Central Africa. In the Attorney General vs. Chipita, 1996/1, Law Report of the Commonwealth (LRC), the Court of Appeal of Malawi held at page 460, letters ‘e’ to ‘f’ that Parliamentary Standing Orders are merely internal rules to regulate the internal procedure of the National Assembly and not subsidiary legislation under the Constitution, and that their validity was not derived from legislation. So that the National Assembly was free to amend and modify its procedure with any recourse to any statute. The Court further opined that while it is true that the Constitution gives powers to the National Assembly to make rules to regulate its internal procedures, and, of course, our Article 165 does so, that did not make Standing Orders subsidiary legislation under the Constitution. They are not legal rules, but are merely internal rules to regulate the internal procedure of the National Assembly. Whenever they are inconsistent with the Constitution, they are void.
If we pass laws here, as we did, unanimously when we amended the electoral laws of this country...unanimously we passed a law at the High Court of the Supreme Court of Judicature and declared it to be inconsistent and null and void because it collided with the Constitution...and that is a law, clearly and logically the argument applies a fortiori to an internal rule, which is what Standing Orders are. Standing Orders do not have to be advertised in the Official Gazette, et cetera. It is not law; it is simply a procedural rule of regulating our conduct in the Assembly.
Mr. Speaker: On a Point of Order, in the Ninth Parliament, as you know, Mr. Nandlall, on an objection raised by you, Mr. Ramkarran found, in a ruling, otherwise that the Standing Orders are written law. That is a ruling of this House.
Mr. Nandlall: I am unaware.
Mr. Speaker: It is a ruling in which you rose… I just thought I should advise you on a ruling given on the very subject by my predecessor. When the Trade Union Recognition Bill was being introduced, Mr. Robert Corbin, then Leader of the Opposition, objected to the Bill being read a second time. He said that the requisite six days required had not been met as per our Standing Orders. You then countered by saying that Standing Orders are not law. Mr. Ramkarran felt that Standing Orders qualified within the meaning of written law under our Interpretation and General Clauses Act. I will get a copy of it for you.
Mr. Nandlall: I respectfully say, Sir, that if that is the ruling of Mr. Ramkarran, he is wrong and, secondly, assuming… [Interruption]
Mr. Speaker: Hon. Members, Mr. Nandlall is entitled to disagree with a previous ruling in the same way we are entitled to disagree with a ruling of the High Court or any other Speaker for that matter. That is his right and I do not think he is in contempt. He should not be threatened in that manner. He is entitled to that view. In fact, he is consistent with his opinion, which he had then, that Standing Orders are not written law. I would be surprised if, in fact, his view changed.
Mr. Nandlall: That is correct. Thank you very much, Sir. The fundamental point that I want to make is: assuming that Standing Orders are law, they cannot collide with the Constitution. We must have common ground on that.
Sir, I wish to now, having established that the Court has jurisdiction with all the authorities that I have cited, to rule on matters of alleged violation of the Constitution and the Court, having so ruled, let us now examine what it is that the Court said. Perhaps I should begin by recognising and congratulating the Hon. Dr. Ashni Singh for a remarkable analysis of the Chief Justice’s judgement. As I said, the Chief Justice’s judgement is written not in Chinese, but in English. One would expect that a Parliament would not engage in the type of exercise where we are really disputing what is written here. The system to which we subscribe, the system which forms part of the rule of law and democracy of our country, allows us who feel aggrieved by this ruling or any other ruling to challenge it outside, but not to stand up and argue that I am saying this and another person saying the same thing means another thing.
I believe, Sir, with the greatest of respect, that this is an exercise that is very unfortunate. But it is my duty to be part of this exercise, so I will do so. The Chief Justice began by analysing Article 218 which is the key to unlock the door in determining what is the role and function of the National Assembly in the Committee of Supply. It really lies in Article 218. It states this:
“(1) The Minister responsible for Finance or any other Minister…”
I pause here to say, Sir, that right away the framers of this Constitution intended to demarcate, in a constitutional matrix, where the power lies. The power does not lie with Dr. Ashni Singh, the Hon. Member; it lies with his Excellency the President, the fountain head of executive power in the constitutional matrix of Guyana. That is where that power lies. Dr. Ashni Singh, the Minister of Finance, is simply a delegate of the President. That is why the Constitution itself states, “The Minister responsible for Finance or any other Minister…”. So I can do it too. It means that it is an executive power. That is first thing.
“…designated by the President…”
So it is designated by the fountain head of executive power.
“…shall cause to be prepared…”
He prepares it.
“…and laid before the National Assembly before or within ninety days after the commencement of each financial year estimates of the revenues and expenditure of Guyana for that year.”
(2) When the estimates of expenditure…”
And I skip the irrelevant part.
“…have been approved…”
I pause here to say that we are asked to accept that the word ‘approve’ means amend. The resort to an Oxford Pocket Dictionary should clear that delusion. [Mr. Greenidge: Why use a pocket dictionary?] Because a pocket dictionary ought to clear that delusion and illusion under which some are labouring in this House. ‘Approve’ by no stretch of the imagination in the English language can ever mean amend or reduce – never! Dr. Roopnarine, the Hon. Member, is a renowned linguist. Let him stand up and say by what linguistic gymnastic or linguistic acrobatic can the word ‘approve’ be synonymous with, equal to or be a substitute of ‘reduce’, ‘cut’ or ‘miniaturising’.
“…have been approved by the National Assembly a Bill...”
I go back again.
“When the estimates of expenditure have been approved…”
It is not if it has been approved; it is when it has been approved. Do you know why the Constitution states “when” as opposed to ‘if’? It is because it does not contemplate disapproval.
Mr. Speaker: With respect, the Chief Justice does though.
Mr. Nandlall: We will deal with how the Chief Justice dealt with it. I intend to go on to say what he said.
When it has been approved by the National Assembly a Bill, to be known as the Appropriation Bill, shall be introduced in the Assembly, et cetera. We have not reached the stage of the introduction of the Bill as yet. I believe my honourable, distinguished and noble friends on that side are premature in their arguments when they speak about power to amend a bill, power to amend the Appropriation Bill. The Appropriation Bill is not before you. You cannot amend. That is not an issue here. What the Minister has presented to this House is the Estimates; no bill has come. [Mrs. Backer: Well what will happen when the bill comes here?] We have to be precise; we have to be mentally lucid and we must have specificity and clarity of thought or else we will get confused in the maze and the legal intricacies that are unfolding here. What are before this House are simply estimates that are going to be presented. We do not know what will happen to them. So, to articulate the argument of an Appropriation Bill at this stage is wholly premature.
Let us go on to what the Chief Justice said:
“It can readily be seen that it is the Minister of Finance (or other designated Minister) who bears the constitutional responsibility and duty of preparing and laying before the National Assembly the estimates of both revenues and expenditure. This is so because it is the executive who has the constitutional responsibility of managing and piloting the ship of State and, as a matter of practical reality, the administrative machinery for preparing such estimates.”
[Mr. B. Williams: What page are you reading from?] For your guidance, Sir, I am reading from page 14.
“It can also readily be seen that, in respect of expenditure, it is the National Assembly which bears the constitutional responsibility of performing an oversight…”
I pause.
“...an oversight...”
I do not want to sell the National Assembly short. This is what the Chief Justice said. Who has a problem with it, we cannot stand in the Parliament, as Isaacs and Robertson, and Hadkinson and Hadkinson said, and toss it aside. We cannot do so. You have to go to the Court to challenge it. A year has passed and no challenge has been filed, although it is challengeable. So, it is not open to Members of this House to argue that the Chief Justice’s decision is wrong and that we are not going to be bound by it. That is simply not an option if we want to remain among civilised nations.
“It can also be readily seen that, in respect of expenditure, it is the National Assembly which bears the constitutional responsibility of preforming an oversight or a gate-keeping function of approval or non approval over the estimates of expenditure to ensure that they are in consonance with what will be necessary to fuel the implementation of the plans, programmes and policies of the executive government.”
The Chief Justice makes this emphatic point that seems to have eluded my Friends:
“This is not a power of making estimates of expenditure (which is for the Minister). The power of approval must therefore be distinguished from a power of determination of estimates of expenditure.”
These are extremely important, fundamental words that carry different meanings, implications, impacts and effects. We cannot mix them up. Law is about language. Every single word has a meaning. We have, if we are going to ascribe to ourselves the power to interpret it, to ensure that we subscribe to the cannons that govern the interpretation of law. Those cannons essentially say that when the language is clear, you give it its literal meaning. So, the power of approval must be distinguished from the power of determination of the estimates.
The Chief Justice continued:
“Unsurprisingly, the Constitution does not address or speak to a negative state of affairs…”
Coming to Your Honour’s query
“… the Constitution does not address or speak to a negative state of affairs such as non-approval by the National Assembly but speaks to a positive state of affairs i.e. approval. Article 218 (2) provides:”
And the Chief Justice quotes it again for emphasis.
““When the estimates of expenditure…have been approved...”
It is not ‘disapproved’; it does not contemplate a non-approval, and that is what the Chief Justice said. I am saying that if it is that this National Assembly has a problem with that then it is not open for this National Assembly. I am going to quote some other cases to disagree with the Chief Justice’s ruling.
“This is so because it is inconceivable…”
The Chief Justice did not leave it as bald as that. He went on to explain the rationale, hence the reason whenever I speak about this ruling I always ensure that I quote the length of it. I always say, “In a 34-page ruling...” because the Chief Justice was careful in explain in every conceivable way what he ruled. He said this:
“This is so because it is inconceivable that the National Assembly as a national institution would cripple executive governance by non-approval of any estimates of expenditure.”
So, he went logically, constitutionally and even feasibly as to why, and he concluded. He was saying why there is no power to disapprove.
Mr. Speaker: Mr. Nandlall, what if a House wants the power not to cripple, but to contain. Why should it have the power to cripple but not to contain?
Mr. Nandlall: It does not have the power to cripple.
Mr. Speaker: It states here, “It is inconceivable that the National Assembly would cripple…”
Mr. Nandlall: …would cripple the executive by the non-approval of any Estimates - any!
Mr. Speaker: The point I am making is why is it that the House must move to a stage of shutting out all as against some? What if I do not want to cripple, but I want to contain?
Mr. Nandlall: I am not advocating that the Opposition has a power to even take a dollar. I will go on to show what the Chief Justice has said in relation. We are dealing with concepts and I always knew that there was a conceptual difficulty.
In principle, Sir, if the Opposition has a power to reduce by a dollar, it has a power to reduce to a dollar. The Opposition has no power of reduction. That is the essence of this ruling and I will go through it. The Opposition can disagree with it. I do not want my Friends to believe that I am saying that they must agree with it. What I am saying is that they are bound by it. That is what I am saying. [Interruption] If you do not want to accept rulings of the court, the camera is rolling; the nation will see that this is an Opposition that is saying to the country and to the world that they are no longer bound by the rulings of the Supreme Court of Judicature of the country. There is nothing wrong with that. You do so at your own peril.
“Thus, even though the power of approval necessarily has as its corollary the power of non-approval, Article 218 (2) was drafted on the assumption that the National Assembly would eventually approve the estimates of expenditure. Final non-approval of the estimates of expenditure by the National Assembly does not appear to be an option contemplated by the Constitution.”
You may disagree with it, but you are bound by it.
Mr. Speaker: Mr. Nandlall, you have been speaking for 55 minutes, approximately. While we are in the Point of Order mode and not motions, the strict time limits do not apply. It is just to give you an idea of where you are. It is interesting for me, but I know that some others may not find it…
Mr. Nandlall: Sir, we are dealing here with the national Estimates of this country.
Mr. Speaker: I agree and that is why I am prepared to give as much time as is needed. I just thought that I should let you know.
Mr. Nandlall: I do not know of any other significant event in the 83,000 square miles of this country that is more important than this. You are presiding, Sir. If they withdraw the motion, I will sit. [Ms. Ally: Withdraw which motion?] The motion to cut. If you withdraw it, I will sit down. I am entitled, as the Attorney General and as the legal advisor to the Government... [Mrs. Backer: You cannot speak forever] The length of my speech, Sir, is at your discretion, the House’s discretion. And to your discretion, Sir, I will bend and bow.
Mr. Speaker: What I wanted, really, was an idea of how long more you think you have.
Mr. Nandlall: I have about 30 minutes more. I will abridge what I have to say quickly. I am at page 15 of the ruling, Sir.
“Clearly, it is the Minister of Finance on whom the Constitution has reposed the responsibility of preparing estimates of both revenues and expenditure, it is the Minister who must go back to the drawing board and revise his estimates…”
This is the important part. It is on page 15:
“…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 – thereby pre-empting the Minister from revising…”
Page 16:
“If the National Assembly were to reduce or cut the estimates of expenditure, this would mean that the estimate of expenditure would be as determined by the National Assembly rather than by the Minister.”
So, the allocation to buy pumps, for example, will not be determined by Dr. Ashni Singh, but will be determined by Mr. Ramjattan. The Estimates would be determined and approved by the National Assembly rather than as determined by the Minister and approved by the National Assembly.
Article 218 clearly does not give the National Assembly the power to determine the Estimates for its own approval. Members do not have that power.
Mr. Speaker: I have a little note on my own hand. To me, it is also reducing the Committee of Supply to a mere rubber stamp. That is a contradiction that I need resolved because if I am to accept this, what then is the time-honoured role of the Committees of Supply and ways and means committees as they have evolved since the 17th Century?
Mr. Nandlall: The Chief Justice seems to be saying that the Minister must go back and revise his Estimates. But, Sir, what we have to recognise though… [Interruption] I am dealing with concepts that fly far above your head and the concepts are that it is not open to the National Assembly not to be guided by the pronouncements of the Chief Justice. I continue:
“Moreover, if the National Assembly had the constitutional power to cut or reduce the estimates of expenditure, it would legally be able to cut such estimates by $1 as well as up to $1.”
The National Assembly has no such power. And then the Chief Justice gave the rationale and he explained the doctrine of Separation of Powers. Then he said this:
“Applying that doctrine of separation of powers…”
And I do not think that even Mr. Greenidge… [Mrs. Lawrence: Hon. Member.] Hon. Member, of course; Mr. Greenidge is a most distinguished, noble and honourable Member in my esteem. Even the honourable, esteemed Member would not dispute that the doctrine of Separation of Power applies to the Constitution, so I can move on.
The Chief Justice continued:
“Applying that doctrine to the interpretation of Article 218, it does appear to the court that it was not permissible for the National Assembly to cut or reduce the estimates of expenditure to any particular figure.”
I have to repeat this because one listening to my Friends over the last year or whenever they speak on this matter, one would get the impression that either they read this, they did not understand, which is quite a possibility, or they forgot, which, again, is a possibility or they did not read it but told us that they read it. There are three options.
Sir, last night I was looking at this ruling and I was wondering which one of the words – I looked at “…applying the doctrine…”, “…does appear to the court that it was not permissible…” – could have been confusing to my friends and I cannot find it. Hopefully, when my learned Friend stands up, he will edify me. But I will read on:
“Applying that doctrine to the interpretation of Article 218, it does appear to the court that it was not permissible for the National Assembly to cut or reduce the estimates of expenditure to any particular figure…”
And zero is a figure.
“…since, in so doing, the National Assembly was both determining and approving such estimates.”
There is not a single word with more than six syllables in this sentence, but yet my Friends find it elusive. I continue:
“If the drafters of the Constitution had wanted the National Assembly to exercise such power…”
If there is a person who does not understand, please, I can explain. Which word do you have a problem with?
“If the drafters of the Constitution had wanted the National Assembly to exercise such power, they could have easily conferred such power on it in the Constitution in express terms – as was done in India. (see Article 113(2) of the Constitution of India).”
What more can I do?
Mr. Speaker: One second, Hon. Attorney General. I did take the liberty of getting Article 113 (2) after it was mentioned this afternoon. Article 113 (2) states:
“…the House of the People shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.”
In other words, they have presented three scenarios: refuse, assent, or assent with reduction. From my reading…
Mr. Nandlall: Which article is that, Sir?
Mr. Speaker: Article 113 (2) of the Lok Sabha has presented three options.
Mr. Nandlall: That is what the Chief Justice said.
Mr. Speaker: Yes, but, in other words, he is saying that the National Assembly can either assent in toto, reject in toto, or assent with reductions. That is in India.
Mr. Nandlall: That is correct. That does not obtain in Guyana. [Mr. Greenidge: Why are you quoting it then?] [Dr. Singh: The Chief Justice referred to it.] The Chief justice said… My Friend is having problems. Sir, I will ask for an extension of the 30 minutes because, obviously... Let me walk you through it. Let me start again. [Interruption]
Mr. Speaker: Allow Mr. Nandlall to speak. Hon. Attorney General, take your time.
Mr. Nandlall: Yes, Sir.
“If the drafters of the Constitution had wanted the National Assembly to exercise such power, they could have easily conferred such power on it in the Constitution in express terms – as was done in India. (see Article 113(2) of the Constitution of India)”.
I move now to deal with my Friend, Mr. Ramjattan. I have one more quotation on the issue of power to cut and then, I believe, I will move to the other issue. [Mr. B. Williams: Are there more issues? I thought it was one issue.] No, it is not the cuts alone.
Let me deal with article 171. Mr. Ramjattan said, with a straight face and very emphatically to this House, that the Chief Justice never dealt with article 171 of the Constitution and the Chief Justice, at page 22, dealt, specifically, with article 171(2)(a). Mr. Ramjattan used article 171(2)(a) and he quoted it and tried to argue that it is applicable. This is what the article states. I will read it for the record:
“Except on the recommendation or with the consent of Cabinet signified by a Minister, the Assembly shall not-
“(a) proceed upon any Bill…”
Mr. Ramjattan does not have a Bill before the House; he has a motion. All of this reliance on article 171 is completely premature. Where is the Bill that you have, Mr. Ramjattan? [Mr. Ramjattan: Article 171 (2) (b) talks about the motion.] I now understand him to be saying that he is relying on 171(2) [Mr. Ramjattan: Article 171 (2) (b).] Now he is saying “(b)”. You have to tell us what you are doing. You have me being longer on the floor. [Mr. Ramjattan: Go to article 171 (2) (b). It states, “…proceed upon any motion…”] “…for any of the purposes…” Which one of the purposes stated there allows you to reduce?
The Chief Justice examined article 171. The power of reduction by way of a statute comes by way of an implication. It is not one of the purposes for which a motion can be filed. Let us deal with the Standing Orders as well because my Friend is relying on the Standing Orders. The Chief Justice dealt with it at page 24 of his ruling. It states:
“The legal truth does appear to be that it is the Minister of Finance (the executive) which is responsible for preparing and laying the estimates of expenditure before the National Assembly for its approval.”
This is about the tenth time that the Chief Justice is making this point, yet it is illusory.
“The National Assembly in the performance of its gate-keeping function may approve or not approve those estimates. If the Minister is not able to satisfy the Assembly, it does not approve. But this is a far cry from saying that, as gatekeeper, the National Assembly is entitled to cut or reduce the Minister’s estimates to any particular figure or figures. To do so would be determining and fixing the estimates for its own approval.”
The Chief Justice continued:
“If the National Assembly can cut and reduce by $1, by the same token, it can cut and reduce to $1. This court has great difficulty in making a finding that the framers of the Constitution could have given the National Assembly such far-reaching power without saying so expressly or by clear implication.”
Mr. Speaker: Pause please, Mr. Attorney General.
Mr. Nandlall: Yes, Sir.
Mr. Speaker: Before the House is a motion moved by the Minister responsible for finance for the adoption of Estimates. The procedure is that when the motion is proposed, at the end of the debate, we move into a committee known as the Committee of Supply, but the motion is extant; it is before us. Does article 171 (2) (b) speak to that at all?
Mr. Nandlall: Sir, I have two answers to that. Firstly, the Constitution deals with finance at a different part of it.
Mr. Speaker: Before you go forward, article 171 (2) (a) (ii) speaks of any charge on the Consolidated Fund or any other public fund or for altering any such charge otherwise than by reducing it. (b) states:
“…in the opinion of the person presiding, makes provision for any of the following purposes…”
In other words, when it deals with a motion, it brings in what is referred to above – charge on the public fund. Before you go to article 218, article 171 (2) (a) deals with Bills, (b) deals with motions and what (b) states is mutatis mutandis: what applies in (a), insofar as Bills are concerned, applies to motions as well.
Mr. Nandlall: The simple answer to that is that that is not addressed in the ruling. I cannot remember my Friend even arguing that.
Mr. Ramjattan: On a Point of Order, my written submissions to the Chief Justice …
Mr. Speaker: Mr. Ramjattan, you will have your chance. As the person who introduced this motion and started the debate, I will give you some minutes to proceed.
Hon. Members, it is ten minutes past seven o’clock. I know that a number of officers have gathered today with the expectation that we would have commenced consideration of the Estimates of Expenditure. I am suggesting that the relevant Ministers excuse them. I do not have the authority to excuse anyone. It would have to be that the relevant Ministers for the estimates that we were to cover today excuse their officers. I believe that we were to cover the Ministry of Foreign Affairs and Ministry of Legal Affairs. It is in the judgment of the Ministers to determine whether or not they wish to have…I doubt because I would need time to consider these very good arguments that I am hearing here this evening and we have not yet heard Mr. Basil Williams. I am suggesting, out of courtesy, that... We have the Director General of the Ministry of Foreign Affairs here. I have noticed that senior officials of the High Court and judicial system are here as well. The relevant Ministers may wish to excuse those officers. That is for them to determine. I doubt, as I said, that we would be in a position to start deliberation on any Estimates of Expenditure. But you are free to sit in and take in the debate.
This is historic and nothing that is happening here has ever happened in any other jurisdiction in the Caribbean. I can assure you of that. You can write about it. Thank you. Sorry about that intervention. Go ahead please, Hon. Attorney General.
Mr. Nandlall: To answer your question, article 171 was crafted and predicated to deal with the situation of existing charges. Hence, my objection, for example, to Hon. Member Mrs. Volda Lawrence’s Bill for the Clerk of the National Assembly because that Bill created a charge, an existing charge; it modified by increasing an existing charge. What are before this House are not yet charges upon the Consolidated Fund. These are estimates for consideration. That is why article 171 is wholly irrelevant, and the Chief Justice dealt with it, Sir, at page 22 of his judgment. [Mr. Ramjattan: There is nowhere that ‘existing’ is in this Constitution.] Existing! You have to read it for it to make sense.
“…for imposing any charge upon the Consolidated Fund or any other public fund of Guyana or for altering any such charge otherwise than by reducing it;”
There is no charge as yet. It will become a charge at some point in time. It is not a charge and, therefore, Sir, article 171 has no applicability to the Committee of Supply and that is what the Chief Justice said at page 22. He rejected out of hand article 171 (2) (b) that Mr. Ramjattan mentioned. It was wholly irrelevant. He dealt with it when he dealt with the first part because, as you said correctly, what applies to the Bill, the same applies to the motion. The Chief Justice explained that the Bill, which the article refers to, speaks to an extant, current, existing charge and, therefore, the motion would also speak to a charge that is in being, that is in esse. We do not have that charge as yet. We are getting there, but these are merely estimates.
“This court has great difficulty in making a finding that the framers of the Constitution could have given the Assembly such far-reaching power [that is the power to cut] without saying so expressly or by clear implication. Such a power would mean that the National Assembly would be authorized to render the Minister’s estimates of expenditure redundant. The court does not deny that the Constitution as the supreme law can so do but, should it do so, it must be express or by clear implication. In this court’s view, such a power cannot be implied by the conferment of the power merely of approval.”
My Friend spoke about the Standing Orders and the Chief Justice dealt with it. He has dealt with it in every case in which he has ruled. This is what he said in relation to Standing Orders, because of the very argument advanced by my learned Friend that the Standing Orders permit the cut.
Recall, Sir, the Standing Committee on Standing Orders of which Your Honour is the Chairman, at our very first meeting, I indicated to Your Honour that, at some stage, we will have to engage in an examination of these Standing Orders to ensure that they comply with the Constitution. And I indicated to you that in the case which was ongoing – at that time we were arguing the case – there are Standing Orders which are in violent conflict with the Constitution.
Let us deal with article 165.
“It is true that Article 165 (1) enables the National Assembly to regulate its own procedure and to make rules in regulation of its own procedure. However, Article 165 (1) has conferred no power in the National Assembly to expand or enlarge the scope of its substantive powers under the Constitution.”
Clearly, only the Constitution can do so. No internal rule of procedure can have that kind of impact and that is the point that the Chief Justice was making. However:
“The power to cut or reduce the ministerial estimates of expenditure can be created under the guise of making procedural rules of self-regulation. Like the power to approve or not approve the estimates of expenditure, the power to effect a reduction thereto is a substantive and not a procedural power. Therefore, the National Assembly under the guise of making procedural rules of self-regulation, cannot confer on itself that substantive power to reduce such estimates. The same applies to Article 74 (1) of the 1966 Constitution which was in ipsisimis verbis with Article 165 (1) of the 1980 Constitution.”
The argument that there is a Standing Order that authorises this National Assembly to cut or reduce is an argument that must be rejected. And the Chief Justice did not only deal with Standing Orders in this matter. In Minister Rohee’s case, the Chief Justice made copious references to the powers of the National Assembly to regulate its own affairs because one of the issues was whether the National Assembly, by votes – because the majority…the argument came on whether the majority can gag Minister Rohee. He said, again, that Standing Orders, irrespective of the latitude, the jurisdictional freedom which the National Assembly enjoys to make internal rules for the regulation of its process and procedures, all of that sovereign power is subject to a singular caveat and that is that it must subscribe and comply with the four corners of the Constitution.
In the first ruling on Minister Rohee, the Chief Justice made that point. In the second ruling on Minister Rohee, he expanded on the point. He said this:
“I had also mentioned in my ruling (referring to the previous ruling) that the right of Mr. Rohee to speak in the National Assembly was not at all created by Standing Orders since Standing Orders as procedural rules of the Assembly do not create substantive legal rights and privileges, but rather regulate the exercise of such pre-existing legal rights...”
You can regulate how a Member can speak, but once he has the power to speak which is grounded in the Constitution you cannot take that away from him. If you have a power to cut then the Standing Orders can regulate how you will cut. If you do not have a power to cut then the Standing Orders cannot confer you with such a power.
“…having been made by the National Assembly itself for regulation and conduct of its own affairs they are not law and do not per se have the force of law.”
That is the chief justice speaking of Standing Orders.
“It is therefore crucially important between the creation of legal rights and privileges by the Constitution and the exercise of such preexisting rights and privileges in accordance with the Standing Orders (rules and procedures) made by the National Assembly.”
He continues:
“The National Assembly cannot by making standing orders confer upon itself the power to deprive one or more of its Members of his or her constitutional right to speak although it can make procedural rules on how to regulate that right pursuant to Article 165.”
This is the rational. And, Mr. Ramjattan, please read the second ruling of Justice Chang. This is where the case from Africa draws the distinction that it is not law and gives the reason. It is not even subsidiary legislation. It is not in the Official Gazette. This is the Chief Justice’s rulings.
“Since the National Assembly is not Parliament…”
It is not the Parliament that makes Standing Orders, it is the National Assembly; Parliament makes laws.
“…the Standing Orders as rules made pursuant to Article 165 are not law but are administrative rules made by the Assembly for the regulation of its own procedure. As regulatory rules and procedures they cannot be interpreted or applied by the Speaker in such a way as to negative any substantive legal right or privilege of any member of the Assembly. They may regulate the exercise of such a right but they cannot negate it.”
Clear emphatic language.
Where does the jurisdiction of the court, leave us? This is what the Chief Justice said, and he addressed this issue on every occasion I approached the court in relation to matters arising out of Parliament. Mr. Williams, my learned Friend, Mr. Ramjattan and your Honour, your own lawyers have repeatedly raised the jurisdictional issue, even in the parliamentary committee case, the first issue raised by Mr. Williams, that the court had no jurisdiction in dealing with parliamentary internal proceedings.
The Nation is watching. When the court ruled it ruled against the Government in that matter; the parliamentary select committee matter. This Government never one day questioned the Chief Justice’s ruling. We never said we disagreed with it publicly. We never said that we are not going to abide by it. The court ruled and everything fell into place. How is it that the Chief Justice was right then, he had the power then, he was respected then, he was venerated then, and he was revered then. Now, in the Budget cut case, he has lost all that veneration; he has lost all that glory. He has lost all that respect. He was right then and wrong now they are saying. Here is where we have the problem. My friends still believe, trained lawyers as they are that they can sit in the Parliament and say the Chief Justice is wrong and therefore they shall disregard his ruling. [Interruption] I am only reading what the Chief Justice has said. It is beyond your comprehension to understand. This is what the Chief Justice said:
“While it is not the function of the court to intervene in or to interfere with the workings and operations of the National Assembly. The court as the guardian of the Constitution and of the law has the jurisdiction to determine whether the National Assembly is acting or has acted in contravention of the Constitution of the land. The court has that jurisdiction to determine the existence and the extent of the rights of privileges of its Members since the determination of such questions are issues of law.”
This is not at all to say that the National Assembly cannot seek to determine such legal issues itself. Indeed, there is every reason why it should seek to do so. However, on questions of law…”
What we are dealing with here are questions of law.
“…it is the determination of the court and not the Assembly which is final and binding. But the court will not inquire into the operations and workings of the Assembly except for the purpose of determining legal questions, whether the Assembly has acted or is acting contrary to…” [Interruption]
I am not jumping, I am reading. Let me start all over again. I am reading one sentence after another. I marked it off.
Mr. Speaker: Do not. We have gone on for one hour and 22 minutes and I think. [Interruption] It is not an abuse; it has been quite interesting. You need to start winding it down.
Mr. Nandlall: I am going to conclude not because I am hearing utterances from the north-western side of the House. [Interruption] I respect age, so I will not respond. The point is that I have said a lot, and I thank you very much for indulging me, and I thank my colleagues on that side and, of course, on this side for indulging me for such a long time. I will conclude the way I begun. We have to decide in this House whether we are going to be bound by the rule of law, whether we are going to be bound by the Constitution, whether we are going to continue to ascribe respect to the Constitution, whether we will allow the constitutional organs to perform their constitutionally ascribed functions. We in this House have tremendous power; nobody interferes with our power. The Chief Justice in his last ruling said he will not make coercive orders against this House. Out of committee, out of veneration for this House, I ask this House to reciprocate. The Chief Justice has ruled; it is the final arbiter of law in this land. The court is the guardian of the Constitution. What we have been engaging in here, I believe, is unnecessary because the court has finally pronounced. And unless and until that ruling is set aside by the law of this land we are bound by it. Therefore, we have an opportunity, and Your Honour as I said, is placed in this very delicate conundrum in that you are essentially being asked to exercise an almost appellate jurisdiction over issues that have been conclusively pronounced upon, not finally. As I said, the fact that it has not been finally done does not cause it to lose its potency in any form or fashion. But there is a pronouncement from the court and no one has challenged it though it was challengeable within certain time frames; the rules of court allow that. But my honourable friends did not challenge it. Today, Sir, you are placed in that precarious position of presiding over and to render an opinion that may be contrary or may be consistent with what the Chief justice said. In my humble view Your Honour has
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