This week most Guyanese watched in disbelief and some in amusement at our Governments most recent visit to the Courts! It is now clear to all that this is a case where a disgruntled Executive seeks a by-pass to get back the flow of funds which was, in accordance with all due constitutional requirements, blocked by that constitutional body called the National Assembly.
The by-pass mechanism being deviously sought is an interim Order of the High Court which, for all intent and purpose, is to permit the Executive to raid the Contingencies Fund; and, to redeem through such an ex-parte interim order what it could not procure lawfully through the Legislature. It is a process that is perverse as it is misconceived.
The legislative action of reducing the proposed Budget and then an Appropriation Bill from $180B to some $158B was made pursuant to a constitutional scheme of enacted legislation and Standing Orders, all of which empowers the National Assembly to be wholly responsible for, and with exclusive jurisdiction to monitor spending. Nowhere is it provided in the Constitution, nor in any statute nor in any Standing Order that a High Court or any tier of the Judicature has that power!
It is also axiomatic that in matters concerning spending and appropriation that the Executive proposes and the Legislature disposes. In the circumstances preceding this litigation, the President through his Finance Minister proposed a Budget of $180B; the National Assembly and the President, the two constituents of Parliament under our Constitution, disposed of $158B! The Honourable Attorney General seems to have forgotten the fact that the President assented to Appropriation Act No. 3 (2012) which reduced the proposed allocation of $180B! Is he saying that his boss’s action is wrong?
The AFC on whose behalf I speak knows that this is an area which many Courts would not be eager to stray into. A Court ought to be reluctant to venture into this political thicket created by the National Assembly’s actions which led to President Ramoutar assenting and hence giving legislative effect to the $158B Budget. This kind of controversy in my submission is non-justiciable. But if I am wrong, then the Courts must make it clear that it will not uphold the Executive’s attempt to shortcut – no matter how specious its arguments as to convenience or hardship – the redemption of funds it lost as a result of the happenings in Parliament during the Budget deliberations. Such an attempt will conflict with any reading or construction of our Constitution. And as the Speaker of the Nation Assembly and leader of the AFC warned earlier, that consequence will be very dangerous for this country.
Disagreements which have been emerging and which, as a consequence of this litigation, are mounting in our Nation because of a lack of harmonious, reciprocal action between the Executive branch of the State and the Parliament, must not result in a tearing apart of our Constitution. Our Constitution makes it abundantly clear that the power to execute laws, (a function of the Executive), does not include the power to make them, (a function of the Parliament). And an Executive which has failed to see the making of a law fully in accordance with the shape and content it desires, because of a partial legislative veto to what it sought approval of, cannot use the Judiciary through such a side-wind of an ex-parte interim order, and as a back door device to procure an appropriation. The Court does not have a remit to approve, disapprove, or reduce a Budget; that is exclusively the jurisdiction of Parliament. And since the passing of the Appropriation Act No. 3 (2012), which is not being sought to be declared unconstitutional by the Attorney General, then the Attorney General should advise his Executive to go plead their case with the members of Parliament! Not with Chief Justice Chang.
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