Separation of Powers and the way forward… It is dangerous to have one judge in the constitutional court

Sep 04, 2014 News

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-“Although CJ’s decisions can be challenged, wrong decisions may give the Government the time it needs to take an action which cannot be effectively reversed,” Carl Greenidge

As far as financial spokesman of the A Partnership for National Unity Carl Greenidge (APNU) is concerned, in order for the separation of powers to be respected and ensured, certain critical shake-ups need to be made.

Chief among these he believes, should be the careful examination of the danger of having the Chief Justice alone handling certain serious matters in the Constitutional Court.

In explaining the basis for this position, Carl Greenidge contended that while it is not undesirable to challenge the decisions of the Parliament, it is however, unfavorable to seek to use the courts for functions which “are obviously not theirs, especially if the ruse is to gain time to cover an illegality.”

The shadow finance minister said that the courts should be sensible enough to spot such abuses but then again, “there is no guarantee”. More importantly, Greenidge said that decisions by one judge who appears to be serving the government’s goals “leave the courts open to charges of bias and disrepute.”

Stating that Guyana is already at that point, the APNU parliamentarian reminded in 1965, the then Chief Justice Harold Bollers, was very strong in condemning what he considered to be the interference of the courts in parliamentary business.

“But based on the current actions of the court, it would appear that the courts see things differently now.”

Speaker of the National Assembly, Raphael Trotman, had stated that he does not believe that the court should interfere to the extent it currently does. Trotman had referred the Finance Minister, Dr. Ashni Singh to the Privileges Committee over a motion moved by Carl Greenidge that the Minister had spent over $4B from the Consolidated Funds without the approval of the National Assembly. The Attorney General (AG), Anil Nandlall had responded to this action, stating that it is for the courts to decide on constitutional matters and not a Committee of Parliament.

However, the House Speaker had said, “If the Parliament says it is not going to give its approval for you to spend $10 and you go and you spend $12 dollars, you may say that the constitution gave the right to do so, but it does not mean that in the process you have not bypassed or disrespected the Parliament. I think the House has a right and a duty to look into any matter where it feels that a member has brought it into disrepute or has disrespected its decisions or otherwise. This has to do with whether or not the rules of Parliament and expectations of a member have been violated.”

Greenidge expressed that he unconditionally supports the Speaker’s explanation in that, the House has rules and means of establishing whether those rules have been broken. He said that the court has no right to substitute itself for that process. He reminded as well, that the censure motion which he laid in the Assembly does not call for an opinion on the legality of the Minister’s action. He said that it points to a decision and actions in defiance of that particular ruling.

Trotman had also stated that he believes that the courts are now seeing things in a different way and it feels that it has the right to get involved and from time to time interfere, but it is something he is not happy about. “However, I feel the courts should be used especially in a situation like ours where you are literally in unchartered waters, constitutionally and otherwise. I think it is being used to take a side in an argument and that is my dilemma,” he had added.

In terms of the way forward, the House Speaker had stated that there is need to have a properly constituted constitutional court where both government and the opposition can ask for a view on a matter. He had mentioned too, that the National Assembly needs the advice and opinion of the court and it should do that and refrain from giving instructions to the Parliament.

But Greenidge did not agree entirely with the Speaker’s proposal. He said, “I do not think that this has anything to do with the changing attitude of the courts to the role of Parliament…certain matters are far too important to be left in the hand of one judge because although his decisions can be challenged, wrong decisions may give the Government the time it needs to take an action which cannot be effectively reversed.”

Greenidge had stated that Nandlall believes that he is “on to a good thing with the courts” and will no doubt milk that advantage for all it is worth. “He tries to goad the opposition parties to fight on a ground which he believes he has an advantage,” the politician added.

Also of significance Greenidge said, is that only the National Assembly has the right to set rules and procedures governing its mode of work, including the disciplining of its members.

“The AG’s call for the courts to intervene is no doubt based on the unreasonable expectation that the Chief Justice (CJ) will remain the only judge taking these constitutional cases. The AG is inviting the CJ to decide that the courts can, in effect, exclusively or jointly discipline MPs and is yet another example of the erosion of the separation of powers.”

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