A bout of constitutional heresy

Feb 16, 2014 Letters

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Dear Editor,
I do not usually engage in exchanges in the press, with non-lawyers on matters of law. I extend this rule to some lawyers as well, when the content of what they espouse is devoid of legal scholarship. However, many persons have requested that I reply to a letter penned by elderly “political scientist” Mr. Eusi Kwayana, published in the Stabroek News, dated 1st February , 2014, under the caption “It is now open for us to conclude that the Committee  of Supply process is high farce.” I choose to respond because the mistake of which Kwayana is guilty, has infected many of the opinions expressed, publicly, in respect of the Chief Justice’s ruling.
Mr. Kwayana makes out a case for supremacy of the Standing Orders, apparently, over the Constitution. He invokes Article 9 of the Constitution, which provides “Sovereignty belongs to the people and they exercise it through their representatives and the democratic organs established by or under the Constitution”, in his attempt to argue, by implication, that the Opposition has a right to cut the National Estimates, presented by the Minister of Finance in the Committee of Supply.
Mr. Kwayana’s argument is predicated upon a fundamental constitutional misconception. He overlooks the cardinal legal truth that the constitution, born out of a referendum, is the supreme voice of the people. It is the document in which the people have agreed to define and delimit even the powers of the members of the National Assembly who are their representatives. As representatives of the people, elected members of the National Assembly cannot act in contravention of the voice of the people i.e. the Constitution. To the extent that the constitution, the voice of the people, expressly or by implication, inhibits these representatives, they are restrained from acting. This is precisely why the Constitution is supreme and not the National Assembly. It is in this context, that Article 9 of the Constitution must be read and understood. Significantly, Mr. Kwayana abysmally fails to appreciate that the Committee of Supply is a creation and handmaiden of the National Assembly via Standing Orders. It is not of constitutional or statutory creation. Nevertheless, it ought not to be a farce. In fact, if it has become farcical, it is the elected members who have made it so. The fault must lie in the Members of the Assembly themselves and not in any other person or place. The political truth may be that, Members of the standing committee, including the Committee of Supply, worship at the altar of political interest, rather than the altar of national interest. The result from such a political misfocus is obvious.
According to the decision of the Chief Justice in the “Budget cut” case, the purported exercise of a power to cut the Estimates of Expenditure is a flagrant stultification of the power to approve or to withhold approval of those estimates expressly conferred byArticle 218 of the Constitution. This express power, conferred by Article 218, renders a power to cut by implication, a constitutional impossibility. So from whence is this power to cut derived? The flawed argument advanced, is that it flows from the Standing Orders. This is nothing short of constitutional heresy. It flies in the face of the express language of Article 8 of the Constitution, which declares the Constitution to be supreme and strikes at the very heart of constitutional supremacy, the foundation upon which the edifice of our constitutional democracy is constructed.
Since Section 9 of the Constitution of the Co-operative Republic of Guyana Act 1980, mandates that the Standing Orders must be construed to conform to the Constitution, it is the Constitution which is supreme over the Standing Orders. Therefore, if there is inconsistency between the exercise of powers under the Standing Order and the exercise of power under Article 218 of the Constitution, then the power under the Standing Order cannot be exercised. It would be an unconstitutional exercise of power. This position would obtain even if the Standing Orders are law. Article 8 of the Constitution so prescribes.
Therefore, it rationally follows that if the exercise of power to cut the Estimate of Expenditures of the Minister of Finance under the Standing Order is in direct conflict with the exercise of the power to approve or to withhold approval of the said Estimate under Article 218of the Constitution, the power to cut under the Standing Order cannot be exercised. Or if exercised, will be unconstitutional.
No amount of critical statements from those who regard themselves as belonging to the “intelligentsia” of Guyana can assail the clear rationality which underlies the Chief Justice’s decision;or, maybe, “judgment has fled to brutish beasts and men have lost their reason.”
Mohabir Anil Nandlall,
Honourable Attorney General and Minister of Legal Affairs

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