Constitution - ChrisRam.net - Page 4

The AG’s interpretation of the court’s decision was extremely self-serving

Attorney General Anil Nandlall has regaled the media with a verbose statement on the decision by acting Chief Justice Ian Chang in the case brought by opposition leader David Granger challenging the legality of the spending of $4.6 billion and programmes expressly disapproved by the National Assembly during the 2014 budget debate. Mr Granger sought several declarations that the expenditure was illegal, one order, and a conservatory order staying (stopping) all spending by the government on programmes disapproved or not authorized by the National Assembly until the matter was heard and determined by the court.

According to Mr Nandlall the only matter before the court was the application for a conservatory order and that the hearing and determination of the substantive action was for consideration later. On that basis, Mr Nandlall now argues that the interim conservatory order sought by Mr Granger was the only issue on which the court could properly pronounce.

That is an extremely self-serving and dishonest interpretation of the court’s decision. AG Nandlall did indeed successfully argue against a conservatory order which the court had no option but to accept. The action by Mr Granger’s lawyers was brought in December 2014 to halt certain expenditure for the year. Mr Nandlall is now gloating over that refusal.

Sadly, Mr Nandlall either did not understand the decision or is unfamiliar with the principle of law involved in the case.

There is no dispute of facts in this case, a point made by the court on more than one occasion in its written decision. Indeed it was the Minister of Finance who himself admitted to the spending when he brought to the National Assembly for approval the statement of excess for the $4.6 billion spent on programmes expressly disapproved earlier by the National Assembly.

Applying the constitutional provision to the undisputed facts the court found that “it is clear that the prohibition contained in article 217 (1) (b) of the Constitution was infringed.” That prohibition is against any withdrawal from the Consolidated Fund except as authorised by an Appropriation Bill passed by the National Assembly and assented to by the President.

The principle that guided the court in arriving at its decision on both the interim question relating to the Conservatory Order and on the substantive issue of the spending is well established and reported and that is, when a matter of pure law is raised the court should deal with the matter finally and definitively.

Ostensibly Mr Nandlall wants the substantive matter to go through another round of meaningless arguments completely unmindful of the consequential and “complete waste of judicial time” hearing the “same arguments in law rehearsed all over again.”

Confronted with a finding by the Constitutional/Administrative Division of the High Court that he provided bad advice to the government resulting in the unconstitutional, and unlawful and unauthorised expenditure of $4.6 billion up to June 16, 2014, it would have been wise for Mr Nandlall to take heed of the aphorism that the first thing you should do when you are in a hole is to stop digging.

I believe that Mr Nandlall dreads having to confront the disclosure – which will come sooner rather than later – of the full extent of the unconstitutional and unauthorised expenditure between June 17 and December 31, 2014 which is likely to be considerably more than the $4.6 billion spent up to June 16.

His statement may also be an attempt to buy time for the government to spend billions of dollars during the period January to April 2015 using as the base the 2014 expenditure enlarged by unlawful expenditure.

Defying what is described as trite law, Mr Nandlall in this case argued that the doctrine of estoppel operates against the constitution and the law! Clearly not wishing to embarrass the office of Attorney General, the court graciously ignored the point.

Had such a mindless utterance derived from a junior attorney, he would have been laughed out of the court. That it should come from the country’s Attorney General is a measure of Guyana’s human resource tragedy.

As Attorney General, Mr Nandlall must be aware of the mechanisms available to him as the attorney for one of the parties. He should be availing himself of those rather than parading on the political stage.

Spending by government tests the limits of the Constitution

Introduction
Even as Chief Justice (ag.) Ian Chang considers one major case alleging unauthorised public expenditure of over $4.6 billion between January and early June 2014 involving one article of the Constitution, another case is probably in the making over spending of further billions in violation of another article of the Constitution.

In the current action Leader of the Opposition Mr. David Granger seeks an order to halt unauthorised spending by the government and also for spending on programmes disapproved by the National Assembly to be stopped. The question has been raised why the action was not brought immediately when it became known in June last year that the Minister of Finance had authorised the spending of moneys expressly disapproved by the National Assembly. It is obvious that several billions more would have been spent since June 14 in similar circumstances.

The Attorney General Anil Nandlall, in defending the unauthorised spending by the Government has sought refuge in procedural points, and according to a press report claims that “the court cannot issue an order to stop all government spending not approved by the National Assembly as requested by APNU leader David Granger as there is no allegation that anyone’s fundamental rights have been breached.”
Continue reading “Spending by government tests the limits of the Constitution”

The Budget cuts case

Introduction
The abrupt resignation earlier this month of Court of Appeal Justice Rabi Sukul which I addressed last week on this Blog continues to reverberate in the community, along with two other issues with implications for the judiciary. The first involved unusually swift justice dispensed in the case of baby-sitter who admitted to slapping her one year old charge, the daughter of a magistrate mother and a lawyer father. Without even asking for a Probation Officer’s report, the magistrate sentenced the legally unrepresented teenager to five years in prison. One section of the press had earlier reported the sentence as sixty months but that appears not to be correct.

The second issue raises the question whether a lawyer admitted to practise in the Courts of Guyana who is subsequently convicted in another jurisdiction should be allowed to return to practise in the Guyana Courts. Both in this and the Justice Sukul’s matter the (alleged) misconduct took place outside of Guyana.

There is a striking contrast between the considerable media attention and feedback to these issues and the silence of the major stakeholders over the challenges facing the judiciary. Even if this matter had involved a puisne judge it would have been serious enough to warrant attention. In this case a Court of Appeal Judge and the constitutional body the Judicial Service Commission (JSC) are involved but yet there is virtual silence from the head of the Bar, Minister of Legal Affairs and Legal Adviser to the Government.
Continue reading “The Budget cuts case”

Mr Nandlall should provide the basis for the claim to these astounding powers

According to the Guyana Chronicle of Saturday, October 26, 2013, Mr. Anil Nandlall, Attorney General, commenting on what he referred to as a gag order by a judge in a pending legal matter in the High Court states: “In our legal system, the holder of the office of Attorney General is the protector of the public’s legal interest and the defender of the Constitution of Guyana…” These are astounding powers with which Mr. Nandlall seeks to clothe himself, apparently simply by stating so. He has no such role, functions or powers.

On the issue in which he gratuitously inserts himself, Mr. Nandlall cites principles and authorities mainly from the UK which does not have a written constitution and would therefore be of doubtful authority, and from India, which does. Yet his singular acknowledgement to Guyana is a case of dubious relevance to the substance of what he attempted to address.

Incredibly, while the post of Attorney General is a creation of the Constitution of Guyana, Mr. Nandlall omits to cite Article 112 which sets out in clear language the role of the Attorney General. That article states:

“There shall be an Attorney General of Guyana who shall be the principal legal adviser to the Government of Guyana and who shall be appointed by the President.”

Mr. Nandlall should now assist Guyanese by identifying for us those Articles of the Constitution which in his learned opinion make him the protector of the public’s legal interest and the defender of the Constitution of Guyana. And he must also explain to us his failure to defend our interest in the several violations of mandatory provisions of the Constitution including the requirements for an Ombudsman (Article 191), Public Procurement Commission (Article 121 W) and local government elections (Article 71).

Neither Mr. Nandlall nor his Chambers appeared in the matter in which the Judge made the order and unless he has apprised himself of both text and context of the order it seems completely out of place for him to describe the Judge’s ruling as a “misuse, if not an abuse” of a legal principle. Assuming that he was approached in whatever capacity by the party against whom the order was made, the proper course of action for him was to refer the party to their legal counsel to seek such redress as is available under the law.

I hope that there is one thing that Mr. Nandlall and I will agree on, and that is, the importance of restoring dignity to the office of the Attorney General to which much damage has been done over the past decade.

Neither the President nor the AG is the authority for interpretation of the constitution; that is the function of the courts

The letter by Mr Anil Nandlall, Attorney General and Minister of Legal Affairs ‘The President has untrammelled freedom to assent to and withhold assent from Bills’ (Stabroek News, September 30) addresses two principal points: first the presidential assent (or non-assent) of Bills and second, the role of the Attorney General in the process.

On the first Mr Nandlall argues that President Ramotar has an untrammelled right to withhold his assent to Bills, and cites not only the constitutions of India and the USA, and the Royal Prerogative in the United Kingdom but also refers to the oath by the President to preserve and protect the Constitution of Guyana.

I disagree both with Mr Nandlall’s arguments and his conclusions. While there is nothing wrong with citing constitutions, cases and laws from other countries, any discussion or debate on the Constitution of Guyana must be guided by its Article 8 which states in simple and clear language: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
Continue reading “Neither the President nor the AG is the authority for interpretation of the constitution; that is the function of the courts”