CJ’s decision all a matter of interpretation

Feb 14, 2014 Letters

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Dear Editor,
The High Court granted declarations – (1) That the National Assembly through the Committees of supply has acted unlawfully and unconstitutionally in purporting to reduce or cut the estimates of expenditure of the Minister of Finance and (2) that the power of the National Assembly is limited to giving or withholding its approval for the Minister’s Estimates when those estimates are laid before the Assembly for its approval under article 218 of the Constitution.
None (not even an appellate court-it can agree or disagree) can say, positively, that the learned Chief Justice (ag) in the “Budget Cut” case made a right or wrong decision.  You see, we are in the sphere of interpretation of certain constitutional provisions (on which there are no binding authority) which, are necessarily drafted in general language; and inherent in such generality, is difficulty of interpretation – knowing with irrefutable certainty what the draftsman who drafted those provisions truly intended.
For myself, I apprehend that the draftsman in article 218 in providing viz: “(1) The Minister responsible for finance … shall cause to be prepared and laid before the National Assembly …… estimates of the revenues and expenditure of Guyana for that year”; (2) When the estimates of expenditure … have been approved by the Assembly, a bill to be known as an Appropriation Bill shall be introduced …” intended, and contemplated  approval in the context of that historic English constitutional doctrine of sole, absolute parliamentary control over the Executive in the expenditure of public money (and more specifically out of the Consolidated Fund) of which, the draftsman must, as a legal person, be taken to have been aware.
The learned Chief Justice (ag) apparently was not persuaded of the merits of such a legalistic approach.  Being Devil’s advocate, I must recognize that the problem with such a doctrinaire dogmatic approach, is that Privy Council decisions such as Abegbenro v. Akintola (1963 – a Nigerian case – and Ministry of Home Affairs v. Fisher (1980) – a Bermudian case – has aptly illustrated, that Westminister model constitution’s intendments can be wholly inconsistent with certain English constitutional doctrine.  But doctrines are fundamental to, and, in, the architecture of the Constitution.
There are some salient assumptions and influencing factors to which attention must be drawn.  Assuredly, the draftsman drafted the intertwining provisions of articles 217 and 218 of the Constitution mindful of the type of politics, public finance management and jurisprudence the constitution is as a matter of underlining policies, expected to manifest, promote, nurture and engender.  So, it must be that any doubt in interpretation (and plainly much doubt there is) must be resolved in favour of an interpretation that does not impair in this context, efficient public finance management, in the conduct of Government business.
So, firstly, our 1980 Constitution was not drafted at Westminister, but our 1966 Constitution was drafted at Westminister in England (hence the label “Westminister model” constitution) and it is plainly logical and meritorious to suppose that articles 110 and 111 respectively of the 1966 Constitution, which unmitigatedly were adopted and transplanted into the 1980 Constitution as articles 217 and 218 respectively, were influenced by that notoriously settled English historic doctrine of sole and exclusive parliamentary control over the Executive (the Crown in England) expending money from the Consolidated Fund, of which cases such as AG v.Wilts United Dairies Ltd (1921) and especially Churchward v. The Queen (1865) L.R 1 Q.B.173; are but persuasive illustrations. Certainly, such case law cannot be disregarded as influence upon legislative policy, in an instrument drafted, legislated and intended as the supreme law and, a fortiori, an instrument the framers must have contemplated was to be interpreted by Judges nurtured in and fixated with the traditions and doctrines of English jurisprudence that underlies the Westminister model constitution, in the sphere of public finance.
Secondly, an appreciation of the broad scheme and framework of the Constitution is important.  The draftsman of Article 218 and 217 must have appreciated the context of the impermissibility of coalition – government under the 1980 Constitution (Article 177) and of the potential therefore, as contrived by Article 177, of the Minister in Article 218 having to lay his prepared estimates before, and for approval of, an opposition-coalition controlled National Assembly.  And yet, no material changes were drafted in article 218.  It remains as pristine as its predecessor article 111 of the 1966 Constitution.  One might assume then, that, on the evidence of the continuity of wording, that the jurisprudence and doctrines that underlies articles 110 and 111 of the 1966 Constitution, continues in, and underlies articles 217 and 218, as some kind of existing law within the meaning of “existing laws” (as defined in section 2 of the Constitution of the Cooperate Republic Act) considering that “law” includes “any unwritten rule of law” (article 232).
Thirdly, the view that article 171(2) is somehow indicative of an interpretation limitative of the Assembly’s power to approve under article 218 is not supportable or maintainable to any extent when (as in the Budget Cut case) it is Cabinet’s own Minister of Finance (and not some Opposition member of the Assembly!) whose motion proposing consideration of his Estimates, the Assembly proceeded with.
Fourthly, putting the continuity of doctrine point differently, there is nothing novel or autochtonous about our 1980 constitutional public finance jurisprudence.  There is in constitutional interpretation, a rebuttable presumption against the abrogation of well settled doctrines.  The anthropomorphic conception – the National Assembly, is in the 10th Parliament the same as in the 1st, or any other predecessor Parliament.  So, the relevant public finance doctrines should continue to harmoniously apply, if one accepts that our Assembly has it’s origin in, and substantially (not wholly) takes its character from England’s House of Commons.
Fifth, the doctrines of separation of powers and parliamentary control over public expenditure are not antithetical.  Estimates reduction would be vexing, even frustrating, to the Executive, even harsh, but the vagaries of the 10th Parliament cannot supplant and subvert the workability of those doctrines in our constitutional jurisprudence, otherwise our Constitution and it’s interpretation would be ephemeral and shift with the vagaries and vicissitudes of our General Elections.  That cannot be.
Sixth, it is tempting to suppose that if the draftsman intended that the Assembly could only approve the Estimates as laid, or amended by the Minister himself then nothing would have been easier than to use the limitative words – have been approved by the Assembly as laid (or as amended) by the Minister and not otherwise.  No such stringent limitative words are used.  For good and substantial reasons the constitution has not with “tabulated legalism” explicitly limited the Assembly in the exercise of its power to approve. One might reasonably assume then, neither the wording, nor, scheme of article 218 and 217, or the operation of either doctrines, compels such limitation be read judicially, into article 218, in preference to the interpretation which the Assembly asserts as part and parcel of its own internal proceedings.
Seventh, Section 11 of the Interpretation and General Clauses Act Cap.2:01 (which is incorporated by article 232 (9) into the Constitution and forms part of it) imposes on the Minister an obligation to lay his Estimates before the Assembly in accordance with the standing rules and orders of the Assembly.
So how is the Assembly’s exercise of approval contemplated by article 218 (2), to be done?  In accordance with what?  It may well be, that while the prohibition in Article 171(2) has no application to the facts of the Budget Cut case, the permissive words of article 171(1) does, ie that the Minister’s motion by which he laid his Estimates be “disposed of according to the rules of procedure of the Assembly” Does Committee of supplies proceedings fall within the ambit of “rules of procedure”? (see article 223(8) (a) as to PAC; also article 232 definition of “session” of the National Assembly as including when the Assembly “ is in committee”). The draftsman might reasonably be assumed to have taken for granted that the various Committees established by Standing orders would operate hence no explicit reference to such in article 218.  In any event, the incorporation by reference to “Standing Orders” into the Constitution [Article 223(8)(a)}] affords sufficient evidence that Standing Orders has constitutional operationality in that part of the Constitution dealing with “Finance” (ie title 8).
Eight, the legislative policy or scheme that underlies all the financial provisions (Article 216 to 223 inclusive; Articles 222 and 223 are even entrenched); also Article 171) is – necessity for parliamentary authorization, and a correlative fiduciary duty on the part of the National Assembly.  In this sphere, it is the Executive and not Parliament, that is subservient, and it must be appreciated that each and every exercise of authorization by Parliament begins in and with the National Assembly (as expanded further below).
Nineth, one must assume that the word “Estimates” (plural) is what constitutionally compels the Minister to use a line item format in the preparation of his budget – the Standing Orders are complimentary.  The Estimates (plural stressed) comprises of numerous line items.  It would seem, then, somewhat of a procrustean logic to suppose that by “approved” [Article 218(2)] the Assembly was limited to approving each and every item of estimate; or, none at all!
In any event, the weight of the wordings – the expenditure of each of the entities …. as part of the process … of the national budget” (art. 222A(9); “…. approved by the National Assembly ….(art. 222A (b). “…. approved by the Public Accounts Committees [art. 223(5)] etc. is in favour of close and intrusive Assembly control over the Budget/public money.
It seems more  logical and sensible to suppose that such individuality of line item in the Estimates was intended to facilitate the members of the Committee (as the alter ego of the Assembly) to be able to scrutinize, query, ask questions sensibly, and then determine for themselves in their own deliberate judgments whether that particular estimate (singular) merited their approval.  Mr. Churchward (in the Churchward case) could not be paid for his postal services rendered, when the House of Commons did not approve that particular money item.  Convenience and inconvenience to both the Assembly and Minister are not irrelevant considerations in a matter of this type.  The balance of convenience favours a power of reduction in respect of any item of estimate (a wholly different question from whether the power is abusable and has been misused or abused in practice) for it must be a matter of intolerable inconvenience for the Minister to have to relay his Estimates even where the Committee did not find favour with only a single line item.  Such an absolutist approach defies constitutional logic.
Mr. Editor, the burdens and benefits of the 1980 Constitution are intertwined.  It is a matter of constitutional logic and good sense that the enjoyment of its benefits (article 177) and the endurance of burdens associated with a coalition – Assembly’s power over the Executive’s Estimates, are twin conceptions.
Finally, Mr. Editor, the National Assembly as a constituent part, has power exercisable independently of the Parliament; the Parliament has no power exercisable independently of the Assembly – bills have to be firstly passed by the Assembly before any question of the President’s assent to get an Appropriation Act could even arise. Such constitutional indispensability of the Assembly (entrenched as it is ) must, in contemplation of the framers of the Constitution, carry a correlative trustee-like fiduciary duty of control over public money, in the public interest.  To all practical purposes and intents it is the Assembly (not Parliament per se) that is vested with the power/duty of control.  The Minister goes to the Assembly (the Assembly does not report to Cabinet) not as a matter of mere formality, but as a sine qua non.  Prior to being laid, the Minister’s Estimates remains his, untouchable by the Assembly.  Could such untouchability, sensibly, persist in the domain of the Assembly when laid before the Assembly?  I think not.  And if not, then the words “have been approved” should be interpreted according to the limitation of that wording, and not according to truncated limitation which that wording does not import.
I would suggest that the word “approved” is no less nuanced than “authorization” in the marginal note to article 218, which word it is perhaps obligatory, but certainly legitimate to consider when interpreting article 218 (section 57 (3) of IGCA Chap 2:01).  In its context, “authorization” does not mean, and cannot be taken to have been intended to mean, concurrence (I concur is a phrase very familiar to Lawyers/Judges)  If A (who is the custodian of the CF – which needs two keys to open it, A has one, P the other) has to authorize M to expend from the CF $10 requested by M, then, surely A can say to M – I am not authorizing you to expend $10,  I have authorized you to expend $1 only.  So, M can then say to A – I refuse to introduce a bill with your $1.  M is not permitted to say to A – you have no power to authorize $1 only.
Maxwell E. Edwards

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