Former Presidents (Benefits and Other Facilities) Bill 2012
3812 02 Aug, 2012
Minister of Labour [Dr. Gopaul]: I am reminded of Mark Antony, in Julius Caesar, when he said, “O judgment thou art fled to brutish beast, and men have lost their reason.
In looking at the motion, what Hon. Member Mr. Ramjattan indicated, just now, that the National Assembly can discuss issues and debate issues, as indicated in the Constitution, might be considered as right and supported if only the motion was clear on that. Reading the motion, it is clear that it intends to touch the former President’s benefits and that came out here this evening – benefits and pension. When the Hon. Member Dr. Roopnarine indicated that this country is too poor to sustain the benefits, again it brings out and gives one the impression that as a consequence of that we would have to review to reduce. I am happy that the Hon. Member Mr. Ramjattan indicated in his presentation and he recognised that he cannot touch the pension earned by the President. I will dare say pension and benefits.
I intend to deal with this issue from the position of addressing salaries as well as pension because they go hand in hand. In dealing with ability to pay, the Government, in 1979, said that the economy had not grown and as a consequence was unable to honour the increase which it agreed to between the Trades Union Congress (TUC) and itself for increases in the minimum wages for the years 1977, 1978 and 1979. It deemed it as an act of faith agreement and when the economy experienced some distress in 1979 it decided wholesale not to honour the agreement, but moved to touch the increments of workers, who had already earned their increments, increments which were stipulated in their contracts of employment and the collective agreement. As a consequence of that withdrawal of the increments, the Teemal case was filed.
Teemal, being a member of National Association of Agricultural, Commercial and Industrial Employees (NAACIE), and at that time I was the General Secretary of NAACIE, we felt that a case could be made out for the taking away of the increments of workers which were earned and made payable. Justice Vieira ruled, in that matter, that it was wrong and unconstitutional and he restored it. The Government was unhappy over that decision and moved to Parliament and enacted legislation which was known as the Labour (Amendment) Act, No.9 of 1984. The Labour (Amendment) Act No. 9 of 1984 sought to strike down the judge’s order in the Teemal case, but, more so, deprived people of the right to property, under the Constitution, and moved to amend parts of the Constitution that has already been repealed - the Constitution prior to the 1980 Constitution.
Mohammed Ali, another NAACIE member, along with several hundreds of NAACIE members challenged the Labour (Amendment) Act No. 9 of 1984. That went in front of Justice Baburam at that time. Again, Justice Baburam ruled that the Act was unconstitutional. This is what he said in terms of ability to pay. I quote from page 251 of Resistance and Change, which dealt with the increment case of …, by Nanda Gopaul.
“It would be an alarming situation for an employee to be told by his employers that no matter what they have set out as their terms of employment they will reduce his salary at anytime they thought fit and if he did not like what was done, he could seek employment elsewhere. This would be contrary to all ethical moral and legal concepts. It is not done in civilised communities.
The judge went on to say:
“The common law governing contract therefore was not to be ignored but was to be applied by the courts in a proper discharge of their functions. A denial to citizens by a court of relief for an infringement of his vested contractual rights would be tantamount to a denial of the rule of law. The rule of law is a foundation upon which is structured the system of true parliamentary democracy. The rule respects as well protects the rights of citizens granted under the Constitution, under statute law, under the common law and equity.”
This is clear. Justice Baburam ruled and the Government was not happy and it moved to the Court of Appeal and it upheld Justice Baburam’s rule and the decision by Justice Luckoo. Justice Luckoo said:
“One cannot but come to the conclusion that the pit and substance of section 7 was a legislative plan...”
[Interruption]
Mr. Speaker: Members, I would like to hear. Could you start over that paragraph? I am not getting a chance to hear you, Dr. Gopaul.
Dr. Gopaul: I go to Justice Luckoo in handing down the main decision, which was supported by Justice Massiah, had this to say:
“One cannot but come to the conclusion that the pit and substance of section 7 was a legislative plan ex post facto to prevent the enforcement of the Teemal vs GuySuCo judgement and not to enforce the undertaking given by Clarke and Martin, GuySuCo lawyers, with respect to the other public sector workers of NAACIE, in respect of whom such undertaken was given. It seems to be that once the Act is used to defeat the public sector workers, in respect to whom a clear understanding was given, the Act had no more utilitarian value.
In my judgement the language of the enactment of section 7 was such that, no other conclusion is possible and that was the intention of the legislature. I hold, therefore, that the plaintiffs/ applicants have satisfied the burden of proof which lies on them to show that there was a clear transgression of constitutional principles which is discriminatory in effect and the violation of article 149 of the Constitution.”
As a result of that decision, wages were restored as property in the amended Constitution as referred to by the Hon. Attorney General. It was not only wages, increments and benefits were also added as property under the amended 1980 Constitution. [Mr. B. Williams: Could you read the provision?] Pardon me? [Mr. B. Williams: Could you read that provision that you said about benefits and increments? I know it but …] It is article 142, page 84, Sir, and I will quote for my Hon. Member.
“No property of any description shall be compulsory taken…”
And then it moves on, Sir, to indicate:
“Nothing in the sort shall be construed as affecting the making…”
It is 142 (3).
“…so far as it provides for the orderly marketing or production or growth or extraction...”
Then it goes on to:
“...so far as it provides for the making of contributions compulsory by workers to industrial schemes…”
It is bringing pensions also, Sir.
“…workers’ organisation intended to work or provide for the benefit or welfare of such workers or their fellow workers or of any relatives and dependants on of any of them…”
So the article was extended not only to increments but to pension benefits and schemes. [Mr. B. Williams: Does it mention about increment there?] Yes. It mentioned increments.
On page 224 in the Constitution, salary is protected again and it indicates clearly, in this Constitution, that salary cannot be made less favourable. [Mr. B. Williams: We know that. We are talking about increments and benefits. Where are they accrued and you said that the Constitution provides for that? It is not there.] It states, Sir, under article 222 (3), of page 224:
“The salary and allowances payable to any holder of any office to which this article applies and his other terms of service shall not be altered to his disadvantage after his appointment, and, for the purposes of this paragraph, in so far as the terms of service of any person depend upon the option of that person, the terms for which he opts shall be taken to be more advantageous to him than any other terms for which he might have opted”.
It a clear position in the Constitution that you cannot reduce anyone’s salary; you cannot touched…
I will now deal with the issue of the right to pension. I am going to quote from 149 B, page 98 of the Constitution. It states:
“Every public sector worker shall enjoy an absolute and enforceable right to any pension and gratuity granted to him under the provision of any law or collective agreement or of any kind whatsoever.”
It is pension by the public sector, or by collective agreement, or by any other machinery that exists; that pension is guaranteed. Mr. Speaker, the Constitution also addresses the issue that you cannot reduce the pension…
Mr. Greenidge: Mr. Speaker, I am really sorry. I really find that these presentations are perhaps trying our patience. May I just refer to you that… [Mr. Neendkumar: You have lost a whole decade.] Yes. You are still lost. That is clear. As far as the first resolve clause is concerned, please note that it is specifically stated “without prejudice”. Nowhere in any of the presentations given has there been any suggestion of a reduction in the pension or the gratuity of public servants. So why is it that we are discussing that? Nowhere has that been proposed. Mr. Speaker, the English have an expression of putting up a straw man, so you put up a straw man knock him down. I would urge colleagues not to try our patience by putting up ideas that have not been proposed in order to knock them down. The proposal is quite specific.
Mr. Speaker: Hon. Members, I think we can start to crystallise the issues here and what is not an issue is the pension of any former President.
Mr. Nadir: There is no issue of a Standing Order about trying patience.
Mr. Speaker: That is true too. I do not know that any Member of this House would want to interfere with what is a clear constitutional provision vis-a-vis pensions. That would be ludicrous. As Mr. Greenidge has said that is not being, in any way, interfered with or is he, in any way, skirting around anything that suggests that the pensions of a former President are to be interfered with. But, I have heard a second argument coming from the Hon. Attorney General...
Mr. Nandlall: The second resolve clause, simple language, is: “That a Parliamentary Committee be convened to examine the Pensions (President, Parliamentary and Special Offices) Act, Part II of Section 4(Rate of President and Calculation of Pension 7/8 Ceiling of Pension)…”
Mr. Speaker: But, Mr. Nandlall. Hon. Attorney General…
Mr. Nandlall: “… and to make proposal for revision.”
Mr. Speaker: … you and I know that if it is to be revised it could only go up. Nothing can be done to derogate from. There is nothing stopping any committee from reviewing anything, but it cannot be in derogation from any grant given, so you cannot say that the committee cannot. It could either remain or increase, but it cannot take away.
Mr. Nandlall: I agree except, Sir, that when you read what the motion seeks to do, when you read the preamble, is that it seeks to reduce. That is what the motion ex facie says, that we must be able to afford it, that this thing is so high…
Mr. Speaker: Hon. Attorney General, this is why some of these matters need to go to the Special Select Committee where they could be dilated. I think that is what Dr. Roopnarine was saying. That is the best place for some of these arguments to come out with good legal advice, with good advice that you are getting now from Dr. Gopaul. Go ahead Dr. Gopaul.
Mr. Nandlall: I am happy that my point is recognised, Sir.
Mr. Speaker: Dr. Gopaul, proceed please.
Dr. Gopaul: I merely want to make this point that if it is that the mover of the motion is giving the undertaking to this House that it is not seeking to alter the benefits of any person who has acquired pension under the President’s Act, pension and benefits, then perhaps he will say that there might be need for an examination. I heard clearly, coming from speakers who spoke in support of the motion, that they are targeting, one, the pension of the former President and, two, more especially, they are looking at benefits, which they are talking about, that needs to be quantified. That is what they are saying. I am submitting that in dealing with and discussing this issue of pension, salaries and benefits ought not to.
Something is distressing in bringing this motion. If we want to review the whole aspects of the pension Act it would have been better if proposal had come to the House, as suggested by the Hon. Attorney General, via a Bill, and, in looking at the Bill, we can say send it a relevant committee of the House.
Mr. Speaker: As you can see, Dr. Gopaul, a Bill comes when you know, with some finality, what it is that you want to do. A Special Select Committee allows you to enquire into a matter, make recommendations and if there is a requirement for legislation you can come… but, in a sense, it would have taken you straight to the point that you want to cut without further analysing. Perhaps what the Members on this side are saying is that they want to enquire to see what is happening without going to the stage of cutting anything at this point and time. Let us understand that there is method behind the approach.
Dr. Gopaul: I am happy, Sir, that if that is the position that you are not seeking to deal with benefits which have been earned, accrued and made payable to any holder, I will say that again we were … by the Hon. Member Ramjattan, when the Hon. Prime Minister intervened, he tried to make the point that the 2009 Act was placed there to give the President certain benefits because he recognised that he was not going to be allowed a third term. I merely wish to point out that it was not the 2009 Act, but it was Act No. 6 of 2004, Pension President Act 2004, that spoke to the issue of the … and I quote, section 2:
“The Presidents pension shall be 7/8 of his annual salary of the President in Office and shall continue as 7/8 of such annual salary of each of his successors.
It then went on with widow. Following the passage of that, Sir…. [Hon. Member: That is 2004.] Yes. It is 2004.
Mr. Greenidge: The 2009 Act is the Act that makes reference to the President’s pension and other benefits. I do not know why the Hon. Member keeps redefining the motion.
Mr. Speaker: I know why. I believe that he was saying that Hon. Member Mr. Ramjattan made reference to the pegging of the seventh-eight, which is really contained in the 2004 Act, when in fact your motion speaks more to the 2009 Act. It was Mr. Ramjattan who brought in matters pertaining to 2004 Act.
Dr. Gopaul: It is 2009 Act, Sir. I am saying that it was there in 2004.
Mr. Speaker: Right. That is why he was answering to that.
Dr. Gopaul: I am saying that when the 2009 Act came into being it was specific to Mrs. Hoyte and that is why it was named President’s Hoyte Pension Act of 2009. That brought benefits to Mrs. Hoyte, which included all the benefits which were made payable. I have heard this about the benefits, question about medical expenses,… Hon. Member Dr. Roopnarine said that in the United States of America things are capped for a certain period. Once a person earns a pension, it is not paid for a certain period. A pension is paid for a lifetime, once a person goes into retirement.
Mr. Speaker: That is not an issue. We accept that that is okay.
Dr. Gopaul: It is a security, but a statement has been made and it needs clarification.
Mr. Speaker: There is some trepidation, but that is not an issue.
Dr. Gopaul: Following that amendment, I would state how salaries moved and pension was paid.
Following that special Act, No. 8 of 2009, Mrs. Hoyte secured a widow’s pension in accordance with section 3 and as a result benefited from an increase from $87,143 per month in 2004, because the Act was passed, to $347,395 in 2006, $378, 660 in 2007, $489,468 in 2008 and $543,543 in November 2010. While Her Excellency Mrs. Janet Jagan received, from October 2006, a pension of $729, 529 per month and from March 2009, she received a pension as a legislature of $137,938 per month. Then it moved on as an ex–President where she got a pension $876,692 per month. Former President Arthur Chung pension was also affected in that it moved up and he received a pension from October 1, 2006 in the sum of $729, 529, while in June 2008, as a last pension paid to him, he was in receipt of a pension of $1, 085,427. Following his passing Mrs. Chung got a widow’s pension of $542, 714 per month up to August of 2009 when she also unfortunately passed away.
All the ex–Presidents, in addition to pension, benefited from state vehicles with drivers, gardeners, the provision of security personnel, payment of maids, utility bills, payment of annual vacation allowance for ex–Presidents and their spouses and where applicable duty-free concessions.
I heard comments about medical expenses and our state, our country, cannot overlook the service rendered by former Presidents, regardless from whichever party or whichever side they came from.
The People’s Progressive Party Civic (PPP/C) Government, in exercising the benefit under these laws, did so even-handedly. I want to say clearly that I was in contact always, after the law was passed, with Ms. Hoyte. I was the Permanent Secretary of the Office of the President and I paid particular attention to the welfare and well-being of Ms. Chung and former President Arthur Chung. There were times, Sir, when medical attention was necessary. Nurses were taken from Georgetown Public Hospital Corporation to offer home care, and doctors there, and all the medical expenses, which were incurred during a prolonged period of illness for both former President Arthur Chung and Ms. Chung, were absorbed by the state. We did not discriminate. I am saying, Sir, that in looking at this issue we must ensure that all those who served us and all those who will serve us for the future benefit from what we have given and what we are accustomed. To deal with the issue of a small country and ability to pay would not be right, because that was the position taken before the Teemal case, in the withdrawal of the increment, it was the state’s financial position and we saw what happened in the courts.
I am merely appealing to colleagues that because… I am happy and I am not going to deal with these issues since it is agreed that the pension of holders of the position of President and those who would have earned the pension would not be touched. I do not want to go into the detail to justify why it is not to be touched because it is clear. I recall when Hon. Attorney General made his presentation that he said clearly the effect of examining the existing law, if it were to reduce the benefits, can be looked at unfavourably in a court of law. That was obviously refuted. I merely want to say, Sir, that the President’s pension Act does no harm to this country, does no harm to the economy of this country and that as a nation, and as a Parliament, we should uphold a parliamentary decision made when the Act was enacted. I also want to say clearly Sir, that when 2009 Bill was debated there was an opportunity then, if we felt that we had a cause for concern, could have been raised then.
The year 2004 passed, the Act was passed, Sir. I am saying that we in the PPP/Civic, and we on this side,… [Interruption]
Mr. Speaker: Allow Dr. Gopaul to complete his presentation.
Dr. Gopaul: …do not support the motion as currently put. I am leaving the House at least happier because the commitment, which was given, was not what was initially spoken about when the debate commenced on this motion. Sir, I believe that there should be another way out if you want to examine pension, but not in this manner of the motion. Therefore, I have to say that we do not support the motion in its present form. [Applause]
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