THE CONSTITUTION NEVER PROTECTED THE RIGHT TO AMEND THE ESTIMATES

February 3, 2014, By KNews, Filed Under Features/Columnists, Peeping Tom, Source

Those who support the right of the National Assembly to cut the Budget have failed to advance grounds within the Constitution to support this right. As such, they have resorted to a subsidiary argument. They are now contending that the right to amend is a right granted by the Standing Orders and that the Standing Orders are protected by the Constitution.

Their argument thus goes as follows: The Standing Orders of the National Assembly allow for the Estimates to be amended. The Constitution protects the Standing Orders. Therefore the Constitution implicitly allows for the amending of the Estimates.

This is very weak argument, because if it can be proven that the Constitution does not protect the Standing Orders, there is no limb on which the argument can stand.

This column argues that the Constitution of Guyana never protected the right of the National Assembly to amend the Estimates of Expenditure. The column also disagrees with the view that the Standing Orders give a right to amend the Estimates.

The Constitution of Guyana cannot protect what never existed. The Constitution does not safeguard the Standing Orders. What the Constitution protects is the right of the National Assembly to control its own internal affairs by setting its Standing Orders. It is this right to determine its own Standing Orders, not the Orders per se, that are protected.

These Standing Orders are rules of procedure. They are not law. And they cannot abrogate the Constitution. For example, the Standing Orders cannot declare that anyone who speaks against a motion should be imprisoned. This would be in violation of the fundamental rights and freedoms guaranteed by the Constitution.

Whenever new Constitutions are being promulgated, it is necessary for certain things to be preserved. Most Constitutions do this via what is known as saving clauses provisions. Thus, for example, the 1980 Constitution of Guyana had a saving clause provision that preserved the existing laws of the country. If it did not, it would mean that all the laws previously passed would have been annulled and new laws would have had to be passed.

Similarly, the 1980 Constitution has a provision that preserved the status quo of those Standing Orders of the National Assembly which existed prior to the enactment of the new Constitution.  It preserved these Orders. But the 1980 Constitution also granted to the Assembly the right to determine its own rules. Thus, upon the coming into being of the new Constitution, the existing Standing Orders were preserved but the Assembly has the right to change these rules of procedure.

Contrary to some opinions, the Standing Orders have never given to the National Assembly the right to amend the Estimates of Expenditure. The National Assembly is required to approve or not approve the Estimates as submitted by the Minister. It does this when sitting as the National Assembly and not in the Committee of Supply.

The work of the Committee of Supply is to scrutinize the Estimates. Indeed, the consideration of the Estimates of Expenditure is the most important aspect in the Budget consideration process since it is within the Committee of Supply that the most rigorous scrutiny of the Estimates takes place. The National Assembly as a whole convenes into the Committee of Supply in order to dissect each line item in the Estimates. Questions are asked of the subject Ministers. They are required to justify the line items in the Estimates. Comments are made and in the end a vote is taken as to the line item.

The essence of the CJ’s decision is that if the National Assembly is allowed to approve the Estimates, this would amount to it preparing its own estimates and then approving it. Thus the Court has held that the National Assembly cannot determine its own Estimates and then approve them. Rather that turning the work of the Committee of Committee of Supply into a farce, the decision of the Chief Justice avoids a farce: that of the Assembly approving its own Estimates.

The conclusion that the decision of the CJ reduces the work of the Committee of Supply to a farce is misinformed. This decision does not negate the work of the Committee of Supply. It still has the obligation to scrutinize the estimates and as a committee it can make recommendations which the Minister may or may not consider.

If the Minister of Finance agrees with the recommendations within the Committee of Supply, he can present amended Estimates of Expenditure in accordance with these proposals. This will then have to be approved by the National Assembly.

It is the prerogative of the Minister to determine whether he will amend his Estimates as per the proposals of the Committee of Supply and then present these to the National Assembly for approval.

It is his call because it is his Estimates. The Committee of Supply cannot cut anything. It scrutinizes and recommends by vote but it is for the Minister to determine whether there will be amendments.

Rather than reducing the work of the Committee of Supply to a farce this actually strengthens the hands of the majority in the House since if the Minister refuses to incorporate the recommendations of the Committee of Supply the majority in the House, they have the option of rejecting it and forcing the Minister to return with new Estimates.