Over the shoulder

Jan 31, 2014 Features / Columnists, Freddie Kissoon

---

 
In 1997, Mrs. Janet Jagan created public consternation when she threw a Court Order over her shoulder at a ceremonial event at State House after the 1997 elections. The actual swearing-in had already been secretly completed and the ceremony was merely perfunctory.
While the ceremony was in progress, a Court Order was obtained preventing the swearing-in of Mrs. Jagan. But unknown to those serving the Order, Mrs. Jagan had already been sworn in to office, thus nullifying any effect of that Order.
When the Order was served, Mrs. Jagan in a fit of rage threw the Order over her shoulder. She later apologized for her emotional reaction and explained what led her to do that. However, the opposition parties and their supporters who had publicly and shamefully ridiculed her in the streets, using racial caricatures, never allowed her to forget that act of throwing the Court Order over her shoulder.
For them, the throwing of the Court Order over the shoulder became a lightning rod with which to accuse her of not being prepared to accept a ruling of the court.
On Wednesday, the Chief Justice of Guyana declared that the action of the opposition parties in cutting the 2012 and 2013 Budget was unlawful and unconstitutional.
The Chief Justice made a declaration in keeping with the comity that should exist between the arms of the State. Out of respect for this relationship, the Courts in Guyana have been cautious to not issue directives to the legislature, but restricted themselves to declarations which by convention it is anticipated that the legislature would respect the decision of the Courts, just as the opposition parties had expected of Mrs. Jagan.
The opposition parties have however indicated that they will proceed with the cutting of the 2014 Budget. This is of course even before they have seen the Budget. They do not know what is in the Budget, but they have already decided on a strategy of cutting and amending. This is what passes for an opposition in this country.
By indicating that they will cut the 2014 Budget, the opposition parties are effectively throwing Justice Chang’s Court Order over their shoulder. They are disregarding it.
Their argument is that the National Assembly is independent and that the Standing Orders of the National Assembly grant them the prerogative to cut the Budget. These two grounds are linked, because it is assumed that by virtue of parliamentary independence there can be no judicial review of either decisions of the National Assembly or the Standing Orders.
Both of these points were dealt with and dispensed with in the decision of Justice Chang. Yet the opposition parties indicated that they will go ahead with the cuts. This rises that question about just where the legislature stands in relation to decisions of the Court.
It should be recalled that during the PNC regime, a sugar worker by the name of Seeram Teemal had challenged a decision of his employers, GuySuCo, which had withheld increments due to him. The Court ruled in favour of Teemal and deemed it unlawful for the increments to be withheld.
In order to avoid paying what was due to Teemal and all the other sugar workers, the PNC government passed the Labour Amendment Act. This too was challenged. After a long judicial process it was declared by the Courts that aspects of that legislation were unconstitutional.
The government appealed that decision and again lost. In order, however, to avoid having to pay the sugar workers, the government used its legislative power to amend the Constitution.
It is instructive that in moving to amend the Constitution, the PNC government respected the decision of the Court. It did not take the position that the legislature was independent of judicial review of legislation.
In the present instance of the Budget cuts case, the opposition parties are contending that the National Assembly is immune from judicial review and thus implicitly not obligated to comply with the ruling of the Court.
But if as the opposition claims, the National Assembly is independent of the judiciary, why then did the Leader of the Opposition want to be joined to the Court case challenging the Budget cuts?
Why when the Court ruled that he should be excused from the case did he appeal the decision claiming a right to be heard? If the National Assembly, as is contended by the opposition parties, is independent of the judiciary, why fight to be heard and be part of the case?
APNU has also indicated that it would consider legal action against the decision of the President not to assent to Bills passed by the National Assembly. Well, if the judiciary is not supposed to inquire into the business of the National Assembly, why seek redress in the Court? The position of the opposition parties is not consistent.
For the opposition to cut the 2014 Budget, they will require permission from the Speaker to proceed in that direction, which would be in contravention of the decision of the Chief Justice.
As such, it now needs to be asked what will be the decision of the Speaker in this regard. Following Justice Chang’s decision, the Speaker is reported in the press to have indicated that he will be filing an appeal.
But the more germane question is whether he will uphold the decision of the Court, seeing that in the past he has acknowledged that the Court is the guardian of the Constitution.
Will he allow the opposition to cut the Budget and thus flout the ruling of the Chief Justice? Or will he do as he did in the past and seek a legal opinion?

---

---