Former Presidents (Benefits and Other Facilities) Bill 2012
3522 25 Jan, 2013
Mr. Greenidge: I thank you very much, Mr. Speaker. I am honoured to have the privilege to present this Bill especially because the 2011 Elections, if it established anything, was a commitment on the part of the Members on this side of the House to deal with certain issues of governance pertaining to lawlessness and abuse of power. In this regard, there was extensive debate, as you would know, across the country in connection with the legislation passed in 2009 pertaining to benefits and other facilities to be made available to the then outgoing President of Guyana.
The election debate, as I have signaled, in effect gave these Parties in this House a mandate to address this grievous issue and I am pleased to be able today to say to you that the delay involved in getting this specific Bill to the House today was the result of efforts to ensure that there was a common understanding of what was required and to ensure that, having passed a motion on this matter in 2012, the Bill conformed in its entirety and scrupulously to the motion that was passed. The issues of what the three elements of the motion were and the three resolutions arising from the motion was the subject of some exchange when we considered the first reading of this Bill, so I shall not go there again, but I would like to say to you that in effect, this Bill has two main elements. One is that it seeks to repeal the former Bill of 2009 and, in addition, it seeks to remedy the deficiencies of the old Bill. Those are the two basic purposes behind the drafting and the laying of Bill No. 29 of 2012.
The Bill, first of all, I think, is based on an assumption, very clearly, that the Constitution, itself, provides for a pension for the President. It provides a pension for the President. As I indicated the formula for that pension is a rather generous one which will eventually result in a president who may have served as short a period as a day receiving a pension that is seventh-eight of the salary of the incumbent President. Since that salary is subject to increases, the pension, which the former Presidents will be due to receive, can, in fact, exceed the salary that he would have received when the President demitted office.
It is also the case that in arriving at the formula it would appear to have been the result of some rather self-serving moves. As you know, the emoluments of the members of the judiciary were first amended and then the seventh-eight level was set. Then the Presidents’ pension was adjusted to link it directly to that of the judiciary. This had not been a principle that we had embraced prior to 2009. As I am saying, it would appear very much to be a self-serving piece of legislation geared to providing exceptional benefits to the President at a time when he was anticipating leaving office soon after.
In other words, Mr. Speaker, the level of the pension itself is exceptionally generous, by most standards and, as you know, this one has been the subject of a court case. The ruling by the Chief Justice was rather interesting. He contended…and I would like the Government to bear in mind that this is a formula that could probably serve us in other regards in the future. In effect, what the Chief Justice did in arriving at his decision was to point to the Constitution, suggesting that the Constitution provides for the Government to be able to legislate in a manner that would enable them to make laws for the peace, order and good government of Guyana. It is in that context, no other context, that he seemed to have had no difficulty with attempts to add to the pension which was legislated for in the 2009 legislation. All I would say is that that particular reference is so wide as to be almost meaningless. It covers almost anything and this clearly cannot be a guide for us in looking at that issue.
What basically we are saying is that it seemed unlikely that the drafters of the Constitution had in mind anything more than the pension when they agreed to set the level which they did. The point is, however, in trying to add to the benefits that a President would attract benefits, benefits additional to the pension, there is, in 2009, a piece of legislation which was badly drafted. I am sorry to make a comment such as this, as a layman with no experience whatsoever in drafting, but as regards the drafting of this legislation, it is bad in the sense that it is rather exceptional to draft legislation that commits a government to provide facilities and services which are unlimited, unquantified and uncapped. Therefore that is the first issue. For that reason we have proposed in this legislation that all the benefits identified by the drafters and the House in 2009 be capped. We have not removed any of them, but we have sought to cap every single one of them.
As regards the specific benefits themselves, I would contend that whilst I agree that it ought to have been sufficient to provide the pension at the level that it has been set, which I believe currently generates somewhere in the region of G$1 million, it is important that the additional benefits, which are worth consideration, would be in relation to security, which clearly the pension does not explicitly provide for and for medical treatment. Those two have been capped but not to the extent that the other benefits have been capped. That is what I want to draw to the Members attention, that one bears in mind, first of all, that the level of pension is generous enough to have really required no supplementary benefits. Given that they were provided in 2009, notwithstanding that one does not accept the specificity of the rationale set out by the courts in going beyond the pension, one could argue that two of them, could be worth consideration, namely the security and the medical benefits. It is worth bearing in mind that elsewhere, and in the United States of America in particular, Presidents who, unlike ours, were subjected to greater risks on their lives do not have lifelong security details after they have left office. In our case we are seeking to provide lifelong everything after they have left office. Therefore that is one of the issues which are dealt with.
Mr. Speaker, as regards the level of the pension itself, let me just remind you that there are a variety of special offices in this country captured in legislation and considered worthy of special treatment, because of contributions those offices make to the running of the State and our own general welfare, and nowhere can one look at them and justify the differences in the level of the pension paid to the President and those received by other officials, including former Members of Parliament. Those issues need to be considered, but this is not a Bill that deals with that. I mention it just to say to you that that is to be the subject of consideration of the Special Select Committees, which have been established by the House, to look at two sets of legislation. In this particular case our task is to bring some order and some reasonableness to the other benefits associated with the former President. In that case we have – I am not going to go through all of the details – it is to simply capped them in a way that will not do damage to the general principle of a President, that is, that he should be able to, in the period beyond his time in office, live in dignity in a manner befitting the former office and not have to resort to securing incomes or seeking assistance in a way that will cause embarrassment to the office.
Outside of those it is, I think, very important to note, as was drawn to the House’s attention during the course of the debate in 2009. that the way the legislation is drafted, apart from giving uncapped benefits, is in general, perhaps, unusual in that whatever happens, whatever the President does when he demits office, he will receive these benefits. It is also the case that whatever activities he is engaged in, the 2009 legislation seems to envisage that he will have tax free benefits, whether it is in relation to motorcars or anything else, and that I could not see the justification for. What we have sought to do in this new Bill is to ensure that the circumstances under which a President will continue to receive these benefits are clearly set out. In other words, they are conditional benefits.
I would like to draw to your attention, Mr. Speaker, that I would crave your indulgence so that we could make a slight amendment to section 4 of the draft Bill. Outside of that, what I am saying is that the purpose is to ensure that the President is engaged in business activities, trading, and commercial activities, then tax free benefits as well as these additional benefits would not be enjoyed by the person in office. That is set out in section 4. You will note, also, that future changes in the legislation are envisaged to be subject to an affirmative resolution rather than a negative resolution because it is something that is important. It was certainly important politically going into the last election and, therefore, it should be something explicitly approved and modified rather than something simply modified at the hand of a Minister without him having to provide explicit justification to the House.
Mr. Speaker, if you will permit me to just recap very quickly, I am saying that the two broad purposes of the legislation before us have been met, mainly to ensure that the Bill itself of 2009 is repealed.
Secondly, the benefits associated with the office former President, in addition to the pension that the former President receives, are capped, quantifiable, and quantified so that we know what they are at any point in time and that they are quantified in a way that is consistent with the Government’s own resources and capacities because those capacities are not unlimited.
The question of whether there is any threat to the legal principle of accumulated benefits, I am arguing, as I did indicate before, that it is inconceivable that one can argue that something has accumulated benefits and one is unable to specify what those benefits are. They cannot be unquantified and they cannot be uncapped because they come from resources which are the State’s resources. The State’s resources are finite; they are limited; they are quantified in an appropriation Bill every year. Therefore benefits to be paid out from that have also to be quantified. Notwithstanding the diversions of our colleagues from across the room, Mr. Speaker, the fact is that was a major consideration that we set out to achieve.
In addition to those I am saying that the receipt of the benefits is also to be made conditional on other things, such as what other economic or financial activities, a President or former President is engaged in at the time. I hope that those explanations serve to satisfy the concerns and to clarify a number of the points which were raised in the earlier debate. I look forward to hearing constructive contributions, from both sides of the House, intended to deal with a very important issue in any country and the need I have stressed to know very clearly what is it the House commits itself to is very important.
I thank you very much and I commend this Bill to the House.
Mr. Greenidge (replying): Thank you very much, Mr. Speaker. I rise to wind up in relation to the Bill which stands under my name. As far as the presentations are concerned, let me take the opportunity to thank colleagues for contributing to the exercise of trying to ensure that the pitfalls and the broader issues associated with the Bill have been properly ventilated. I made a note also about the diversions and some of the attempts to, instead of dealing with the substance, turn to these personal attacks which seem to have become part and parcel of the deliberations when we are dealing with items that are difficult.
Let me start by saying, in response to the observations of Mr. Nandlall, including his citing of the voting record of some of our colleagues, I have in my hands the National Assembly debate of 30th April, 2009, and that debate, the summary record of it, is very clear that as regards the division called by Mr. Lance Carberry the AFC and PNC Members voted against the 2009 Bill. It is here and the names are set out so he should not mistakenly give the impression that something else happened other than what actually happened. It is in keeping with another document he claims to have had that I am supposed to have signed. Let me say that it is important that we clear the underbrush that constitutes the diversion and conclusion in relation to this debate.
First of all one has to distinguish between the substantive positions, that is the current President and the current Leader of the Opposition and their benefits as opposed to – and you cannot attempt to move from one to the other if the debate is to be meaningful – the Former Presidents and Former Leaders of the Opposition.
In relation to the current President: Certainly the benefits that are enjoyed by the current President are uncapped and what we are saying is in relation to the Former President there can be no justification for the uncapped benefits that we see set out here. What would a Former President, as my colleague was asking, have done to require unlimited security for the rest of his life, he and all of his family?
These are some of the issues that need to be considered because colleagues seem to be deliberately confusing the issues before us. The arguments that we are considering are very clear. The issues of the terms that I have heard – natural rights, stealing of dignity, natural justice… One cannot establish the dignity of a Former President by paying him a fortune, by paying him 30 times the average national income in a country.
That is not the basis on which dignity is established and, therefore, to argue, in this emotive way, is not going to be persuasive at all.
May I also say - some of these are ad hoc – that I have listened to the distinguished Minister of Finance made reference to the tremendous contributions he made in the analysis of the Fiscal Management and Accountability Act (FMAA) by drawing attention to an error which, in fact, I had myself drawn the attention of the House to when I made the presentation. Again, we have come to the same thing where one item is treated as a set of fundamental flaws. These apparently are not politicising, but the Act itself constitutes politicization. For a lot of the debate it seemed, at times, as though what we were debating was something brand new in which issues were plucked from the air without any basis.
Let me just say that I heard the distinguished Minister Irfaan Ali made reference to tolls and dismissing the mention of tolls in the new Bill. Let me just remind Mr. Speaker and Mr. Ali that the original Bill is the place from which that specific passage was taken. That is one of the things we did not change. To come and suggest that this was an error or it was born out of a lack of understanding of the benefits that the average members of the public currently enjoy is unhelpful.
The pension and superannuation benefits are falsely portrayed as being threatened by the Bill. Nowhere does the Bill suggest or seek to amend, modify or deny the benefits associated with the pensions of a former President. It is, perhaps, unfortunate that instead of focusing upon the significance of the pension…The significance of the pension is that it should inform the assessment that we make of the amounts that are set out for utilities, for example. It is not helpful to argue that it is unreasonable to have set a utilities level at five thousand dollars per month because that would not cover a reasonable set of utilities when, in fact, the income available to the former President would include a pension of over one million dollars a month - $1.2 million at the last count. That is the context in which the pension was mentioned by me and I take the opportunity to, again, emphasise, notwithstanding what I regard as quite a despicable misrepresentation of what takes place, as regards my own situation, and I reiterate that I currently receive no pension. I made the point because I suspected that this kind of scandalous and scurrilous attack would arise. I spoke to the Clerk at a very stage to remind him that the law does not allow the payment of both. I hope I would not have to continue in this Parliament being subject to these fabrications which are entirely mischievous and everybody knows that they are fabrications. [Dr. Singh: Were you in receipt of a pension...?] That is irrelevant. You should have said that in the first place. That is not what you said.
It would help, I think, if we were also to understand how the current arrangement of pension arose, because I think a lot of confusion surrounds this. The legislation prior to 1991 specified that the pension of a former Prime Minister and President would be set at seventh-eight. Come 2004, I think it was, that arrangement was adjusted and it was adjusted in a way after the Chancellor… As it is known that the lawyers, the Chancellors, the Ministers of Justice in the Cabinet, certainly in the People’s National Congress (PNC) era, attracted a higher level of remuneration than the other Ministers. In this particular case the Chancellor and his associates were visited with tax free incomes. Those tax free incomes were then followed by an arrangement which linked the benefits of the President to that set of salary. In other words, originally, there was a salary set for the Chancellor, which was higher than that of the President. When that salary got increased it was suddenly linked to that of the President. That is how the pension of the former President comes to have been set at the levels we can find in the current legislation. The point is this: Since those levels appear to be so high and they are high compared to other levels in the system, they are not linked, as in the United States of America, and elsewhere, to any specific point of reference of other technical officials in the system. It is specifically linked to a change that has been orchestrated by a President prior to him demitting office in 2009, and that is what gave rise to the problems in the first instance.
This Bill is not about the President’s pension; it is about the benefits. As we are speaking about the benefits, I have emphasised several times that it is, to me,…I know nothing about the law, but it is well established that the law would expose itself to ridicule, as the court, if it seeks to make decisions that cannot be enforced in any reasonable way. In the same manner, the idea that a vested interest can be defined as property and, therefore, any allowances, benefits, and so forth, to which an office is linked has to be automatically someone’s right for the rest of his or her life clearly cannot be sustained. Benefits and allowances, as I understand them, are not obligatory in the sense that they are not like the salary. They are intended to meet an expense or a cost.
To the extent that this legislation is drafted in a way that states, as regards this particular cost, it does not have to be quantified and the person can receive a benefit to the extent that he requests is inconceivable. The State itself does not attract unlimited revenues. How can I as an individual be entitled to unlimited benefits from the State, which costs money, when the State itself is not in receipt of unlimited benefits? It is a contradiction.
No court worth its salt, and I say this with great trepidation, given what I have seen happened in courts around the world, that it cannot be a decision that is enforceable. One cannot insist that somebody has a vested right to a set of resources, the limit of which one does not know. It makes no sense. I do not know what the distinguished Attorney General is saying. For all of the cases that he cited, for all of the intelligence that seems to reside uniquely on the other side, the fact is that the resources available to the State have to be defined at a time when it seeks the appropriation for expenditure in a particular year. Therefore benefits cannot be applied in a way that they are unspecified. They, therefore, in my view, cannot be a right and they have never been a right. They can never been a right.
As far as the cases that the Attorney General has cited, as regards definition of property, and so forth, those are interesting curiosa but they have no relevance here. They are not material. What I am saying is that a number of issues have been raised. The main issues that have been raised seemed, to me, not to touch in any meaningful way the acceptability of the Bill before us. As regards the comparisons for which there were attempts to draw, those comparisons, are again, also, not valid.
I would like to refer also to the contention made by the Attorney General as to the infringement on the right to work. I might have a different understanding of the English Language, but if the legislation states that one’s right to an income or one’s right to a benefit is conditional, it cannot be interpreted to mean that one does not have a right to work. [Mr. Nandlall: Mr. Ramjattan, you are misleading the gentleman.] Well, I am following in your footsteps in that case. What is being said is that it is a right to State’s income or taxpayers’ money. That is not a right. One has conditions to satisfy. If one fails to meet those conditions, one has no right to taxpayers’ money. One can go and work wherever one wants but it is not automatic that these benefits – the pension is not touched – and other facilities cannot be an automatic right. That is what we have done. We have ceased to make them an automatic right.
I believe that our colleagues on the other side have got used to the various abuses of the fiscal system that we have. The Auditor General’s Report points to millions of dollars being spent by ministries at the behest of Ministers and not being properly accounted for and it is felt that this must also apply to any other area that is looked at. For the former Presidents, there are a set of allowances and one cannot really justify them. If the President has to have a swimming pool that requires fifteen people to supervise it and for which the utility Bill, as a consequence, is fifty thousand dollars a month, that is cool. Let him pay it out of the pension and other income that he has, but it cannot be an automatic charge on the state’s revenue when we are unable to pay pension to retired public servants even at a level of fifteen thousand dollars a month, and when the minimum wage is at a laughable level. We have now to look at what is affordable. This is an issue about the structure of payments. This is the issue that is relevant to the presidency and former Presidents. It is not that they are wonderful fellows and they were nice to their ministerial colleagues. All of that may or may not be true, but it is not relevant. What can the State afford in the light of the structure of pay that it has? What can it afford in light of the income that the State collects? That is the issue.
We have to make a decision based upon what is affordable and we also have to understand that sacrifices have to be borne by everyone, all categories. If the Minister is arguing that resources are not available to do things, if resources cannot be found to clean Georgetown, if resources cannot be found to clean up the Kumaka River or Bartica front…Mr. Speaker, it is a question of whether the State can have a defensible regime of payment to all of its citizens. That is the challenge here. We are saying that it cannot be defensible for a former President, already in receipt of over $1.2 million a month, to be having benefits at this level which are uncapped, benefits with no parallel elsewhere. It is wrong for Ministers to come here and tell us that former Presidents have received such benefits, because it is untrue. It is palpably untrue. They have never received such benefits and it is now a matter for us to ensure that these rules are applied uniformly across the board and not for people to come and fabricate reality here.
In terms of austerity, the austerity, as a colleague was saying, should start from the top and we should fashion a set of benefits within our means. We have to be frugal in relation to old-age pensioners, then let us be frugal also in relation to the resources made available to former Presidents. As a colleague was saying, the attempt has nothing to do with attacking personalities; it has to do with putting our foot down on what was initially obnoxious legislation.
Let me come back to the question of the Constitution. Whilst the Attorney General is so fond of telling us about constitutions and how important it is for us to embrace the Constitution, this Attorney General has sat here together with his ministerial colleagues and looked at a Fiscal Management and Accountability Act which infringes article 222 (a) of the Constitution. The other side has managed that unconstitutional Act for over nine years and has not found it convenient to modify it, even after the matter was drawn to the Members’ attention if they had not seen it before. These are the people who tell us about how meticulous they are. They are telling us about how careful they are, how wide reading they are, and here we are, with constitutional breaches which have sat with us for nine years. They have done nothing about it.
Let us not worry about their crocodile tears, but about how our rights are likely to be infringed by legislation such as this. Our intention is clear.
Mr. Speaker, if there is anything to be amended in the Bill let me just crave your indulgence to say right now I am aware that there are two elements in the legislation which merit amendment. They are small and I will crave your indulgence to allow them to be amended at the appropriate time. In the event that the other side is prepared to engage in a dialogue, Mr. Speaker, in relation to future amendments, we are open to discussions. That has always been our position.
I thank you very much for your patience. [Applause]
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