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Jun 21, 2013 Features / Columnists, Peeping Tom
Is APNU making an about-face? The position of the partnership in relation to the judicial review of legislative action has long been that the courts are ousted from oversight or review of the actions of the National Assembly.
APNU, in light of the many legal challenges instituted by the government, has always insisted that the legislature is insulated from the decisions of the court. It even at one stage went as far as saying that parliament was supreme. It was therefore surprising to learn that APNU is protesting a ruling by the court, to the effect that the Opposition Leader cannot be sued for the recent Budget cuts.
Why would APNU protest this decision? Is it not APNU which has adopted the position that the courts cannot inquire into the actions of the legislature? So why would it is object to a court ruling, to wit that both Mr. David Granger, the Leader of the Opposition; and Mr. Ashni Singh, the Minister of Finance, cannot be sued in relation to the Budget cuts since as members of the National Assembly they enjoy immunity from such suit.
Given the public stance taken by APNU on the relationship between the judiciary and the legislature, it was surprising that the coalition did not support this recent ruling, which effectively discharges its parliamentary member from having to mount a defence to the case brought by the Attorney General questioning the Budget cuts.
The ruling in effect means that both Mr. David Granger and the Minister of Finance will no longer be defendants in the matter. It is left for the Speaker of the Assembly to defend the case brought against him by the Attorney General.
The stance taken by APNU is all the more surprising considering the language of our Constitution, which at Article 172 (2) states:
“No civil or criminal proceedings may be instituted against any member of the Assembly for words spoken before, or written in a report to, the National Assembly or to a committee thereof or by reason of any matter or thing brought by him therein by petition, bill, resolution, motion of otherwise.”
The ruling, on face value, merely confirms the immunities expressed and implied in Article 172(2) of the Constitution. However, APNU is contending that the ruling deprives an interested party, the Leader of the Opposition, from being heard in the case. This is far from so. The Opposition Leader can still be heard, but not as a litigant. He may still be heard if the Speaker wishes to call him as a witness, and if this application is approved by the courts.
It needs however to be asked why APNU would wish to be heard when its position is that the court has no jurisdiction over the National Assembly?
Another view is that the ruling deprives the legal representatives of the Opposition Leader from cross-examining someone who has filed an interlocutory application. Why this eagerness to cross-examine someone who has merely filed an interlocutory application? What are the facts that are in dispute and which necessitate a cross examination?
Surely the opposition is not contesting that the cuts took place. It voted for those cuts and approved the Appropriation Bill to that effect. So what questions of fact are being challenged by the opposition?
This case revolves around questions of law. It does seem that what is at issue is the extent of the jurisdiction of the courts into decisions of the legislature, the remedies that the court can insist on if it finds that the legislature may have acted outside of the Constitution, and the compulsory character of any such remedies.
These, it would seem, are questions of “pure” law. Whether or not there were budget cuts, whoever were party to those cuts and responsible for those cuts would not, it would seem, alter the determination of the questions which the court is being asked to consider.
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