The Chief Justice and the “Separation of Powers” – Eusi Kwayana

Letter from Eusi Kwayana  followed by a news report of the Chief Justice’s ruling on Budget Cuts by the Legislature:

Dear Editor,

The Chief Justice and the “Separation of Powers”

In the Guyana Constitution as in most constitutions , the Legislature, the Executive and the Judiciary , the three “powers” of government , overlap. It is the work of the political culture to keep them from intruding unlawfully  on one another’s jurisdictions. Judges are not legislators, but they make law. Many of the laws we are guided by as  “binding precedents”  are made by judges. Societies are not going to throw away the these precedents  until the courts themselves, or the parliaments make  them no longer  binding.

In Guyana it should be easy for a court to appreciate   that the business of the National  Assembly is governed by a special body of  rules with the status of law called Standing Orders.  Are not procedures of the courts governed by Rules of Court? And does not the High Court Act empower courts to determine  their own procedure  where the Rules of Court do not apply? 

Act No 2 of 1980,  which had the present 1980 Constitution as its Schedule,  deemed the existing Standing Orders to be constitutionally valid. The same Act No 2 authorised the 1980 Constitution  on  which both parties  and the Court based their arguments.

I am sure many will agree with my prayer, “Lead us not into confusion” If the Judicial power has its own laws why not the legislative and deliberative

“power”?   The one power able to sanction  the others is the Judicial power.

As I said, in Guyana law, as in most places there is no sharp line separating the powers.

Article  50 dropped some ” supreme organs of democratic  power” during the revision by the CRC. They are now three, namely the President, the Parliament, and the Cabinet. (The Judiciary is not one of them). The minus 50 percent President features in all three of these supreme organs.  Luckily, the article is largely a notion with  no new powers attached.  The National Assembly  is not listed.  For non politicals, the Parliament is the National Assembly with the President.

The Chief Justice, as one friend observed, is ready to grant  the National Assembly  the constitutional right  to reject the whole budget, but not to reject a small  part of it. The part  is greater than the whole in  the judicial  arithmetic. 

According to the  CJ’s ruling as reported, under Article  219  it is open to us to conclude that the whole budget debate and the days  and  process of Committee of  Supply  are   high  farce.  All the Minister has to do is to see that the estimates “are prepared and  laid before the  National Assembly.”

By the way, article 9 of the Constitution says “Sovereignty belongs  to the people and they exercise it through  their representatives and the democratic organs established by or under  the Constitution.”   The case now goes to appeal.

Respectfully,

eusi Kwayana. 

———————————————————————————————————–

News Report on the Chief Justice Ruling:

Budget cut case…Chief Justice’s ruling will have far-reaching effects

JANUARY 31, 2014 |  – National Assembly reserves right to appeal – Speaker Trotman

“The right of the National Assembly to approve, including the right to amend budgetary estimates, is a long established right.” Following the ruling by Chief Justice (ag), Ian Chang, that the political opposition can only approve or disapprove sections of the Budget, the Speaker of […]

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