Private Members’ Business
3225 02 Aug, 2012
Mr. Nandlall: The motion which has been moved by the Hon. Member Mr. Greenidge raises some serious issues. I would like to address them briefly. My first issue with this motion relates to its appropriateness to achieve the objective which its sets out to achieve. A National Assembly is the supreme lawmaking institution of the land. A National Assembly in my humble view ought to exercise great circumspection and care in the conduct of its proceedings and its procedure which it employs to conduct its proceedings especially in a situation where it seeks to review its own conduct and its product and indeed its own work.
The first thing that I believe we should address our minds to is whether it is possible in the first place or whether it is procedurally proper or whether it is the requisite mode by which we should embark upon our own review. We have a constitutional structure under which we are operating, which devolves governmental functions, so to speak, into three major arenas, the Legislature, the Executive, and the Judiciary, each having its own clearly delineated and defined functions to perform and sphere of responsibility within which it must operate. Each, as they are designed to co-exist peacefully and peaceably with each other, is required to perform certain scrutiny and examination of the other’s conduct.
In this tripartite constitutional structure the judiciary is reposed with the exclusive constitutional responsibility of reviewing legislation passed by this House. That is a function that is clearly beyond any form of doubt, ambivalence, equivocation or disputation.
I can cite, as I stand here, numerous situations where this important function of the judiciary, vis-a-vis the legislature, has been adumbrated and upheld by courts right across the Commonwealth Caribbean, the Commonwealth generally and indeed in our own country. We had the case of the Labour Amendment Act, for example, in 1984, which was reviewed by the court and struck down as being unconstitutional, because the test which the law requires legislation to meet, when they undergo their process in this Parliament, is that it must meet the Litmus Test of constitutionality. In that case it was found that that bill, the Labour Relations Bill, among other things arising out of the Timal’s case then in the Mohammed Ali’s case, it sought to justify certain wage freezes and to make them operate retrospectively. The highest court of the land at that time, the Guyana Court of Appeal, struck it down as being unconstitutional and reasserted the supreme and singular role and exclusive role of our courts to review legislation.
More to the point, in 1995 I believe, this Parliament unanimously passed a legislation relating to elections. In essence, what that legislation sought to do was to make it a requirement for a voter at elections, in addition to the Constitutional requirement of being 18 years and over and being resident in Guyana - that is the two Constitutional qualifications for voting - this legislation added a third one, which is that a voter must also be in possession of a voter’s identification (ID) card. This Parliament, as I said, unanimously agreed for to be done and pass a law to that effect.
My learned friends from the other side challenged, not only the elections of 1997 and held a pursuant to that law, but they challenged the law itself having agreed to it. Agreement among us here is immaterial when it comes to the court’s power of review. Because the legal position and the jurisprudential position is that we in this House, whether minority, majority or unanimity cannot pass a law…
Mr. Speaker: Mr. Nandlall, sorry to interrupt you, are you speaking to the Lawrence motion or the Greenidge motion? Your arguments are very sound…
Mr. Nandlall: I am speaking to the Former President’s Benefits and other Facilities Bill and I am getting there.
The court smacked that legislation down as unconstitutional and the courts once again reaffirmed its exclusive function as the body to review legislation.
This motion seeks to remit to a select committee, an Act passed by this House seeking to review it with a view, as the last Resolved Clause says, to revise the superannuation package which is promulgated by an extent legislation that is enforced. So in a nutshell, this Parliament is being moved by way of a motion to remit to a select committee, a particular legislation with the objective of subjecting it to a review and to change it. [Mrs. Backer: That is what you just did with the Deeds Registry Act.] I will answer that. I am saying and I submit that the mechanism by way of a motion is wholly inappropriate for that to be done.
It is not that it cannot be done, but there is a process by which it can be done and that is, you bring a bill to amend the law, that is how you amend a law. If that bill requires examination at a select committee, well then the bill is referred to the select committee. I challenge my friends to cite a single instance where a legislation has been sent, by way of motion, to a select committee for its review. I challenge them on that ground and I can safely say that they cannot cite a single example of where this has been done.
A motion is moved for different purposes, none of them have ever been to remit legislation to a select committee for review. [Mrs. Backer: So what is the point?] The point is that it was disclosed only in today’s newspaper or yesterday’s newspaper that it costs this Parliament $1.7 million to sit everyday and that is the taxpayers’ money. Therefore, we must be careful and we must be cautious in the manner in which we use taxpayers’ money. Because we are going to send this to select committee and then we are going to, in the select committee, make recommendations, those recommendations will have to come back to the House to be adopted and then a draft bill will have to be crafted and laid in the National Assembly for debate all over again and then for passage. That, I am submitting, is a waste of time because the same objective could have been obtained and achieved if the bill… if the Opposition could have worked together and crafted a bill which captures their concerns and Parliament will not have to be burdened to bear the expenditure of that consultation that they ought to have among or between themselves to come up with the bill, then put it before the National Assembly for its approval or disapproval.
I am saying it Sir from two perspectives; one, from the perspective of propriety and acceptable Parliamentary procedures and from the perspective of saving valuable Parliamentary time and valuable taxpayers’ money. [Interruption]
The second issue that I will raise in relations to this bill, which incidentally this bill was passed when Mr. Nagamootoo was on this side and I cannot recall him voting against it, I just wish to put that on the record. The second issue has to do with whether one by ordinary legislation can touch the matters which are dealt with in this bill. A bill that seeks deal with pensions is one that would have to enjoy, in my humble view, a two-thirds majority. Pension forms part of one’s propriety interest, I refer Sir to the second Resolved Clause, which says:
“That a Parliamentary Committee be convened to examine the Pensions (President, Parliamentary and Special Offices) Act, Part II Section 4 (Rate of President and Calculation of Pension 7/8 Ceiling of Pension) and to make proposals for their revisions;”
Those who cannot read very clear language and are in doubt as to whether this motion seeks to remit to the select committee, to review pensions, I cannot help them. The motion is very clear. We all know that Article 142 protects property from arbitrary seizure and that provision has been interpreted over and over again to say that property is not confined to physical property alone, meaning immovable property, but it relates to money and it relates to pensions and that is protected as a fundamental right. If we are in doubt Article 149(B) also speaks to it. The side note is: “Right to pension and gratuity.” And this was put into our Constitution as a result of the Constitutional Reform process. It says that:
“Every public sector worker shall enjoy an absolute and enforceable right to any pension and gratuity granted to him or her under the provision of any law or any collective agreement of any kind whatsoever.”
Not only does Article 142 ensconces property and that by itself includes pension, in the 2003 Reform Process, it was decided that for further entrenchment and perhaps clarity, if apparently there was no clarity before, pensions were dealt with separately and added to the Constitution as a fundamental right.
You have a motion being put to be sent to select committee to review the change of a law which is protected by the fundamental rights provision of our Constitution. That also must be read in conjunction with Article 222 of the Constitution. Article 222 speaks to the: “Remuneration of holders of certain offices.” and amongst the persons listed as persons to which this Article applies, it includes Offices of the President, Speaker, Deputy Speaker, Clerk and Deputy Clerk of the National Assembly, any judge of the Supreme Court, members of the Elections Commission, Public Service Commission, Teaching Service Commission, the Director of Public Prosecutions, the Auditor General and the Commissioner of Police; very powerful offices that are given security of tenure in this Constitution in relations to their removal as well as security of tenure in relations to their remunerations packages.
This exercise that this motion seeks to embark upon must be read in conjunction with these provisions to make sense of it because if while the argument is... [Interruption] If while these persons are occupying offices their salary, their allowances and other terms of service cannot be altered. Listen to the breath of the language which is used, “their salaries, their allowances and other terms of service are protected to the extent that while they hold office it cannot be altered to their detriment”. On what basis when one reads this - this protects them while they are in office – the pension provision as a fundamental right and one reads Article 142 that secures property from diminution and arbitrary acquisition, then clearly one must get a sense that there is a clear intention of the framers of this document to protect the remuneration of office holders of a particular constitutional calibre, during their tenure in office, as well as when they depart office.
Therefore, those who are going to be embarked on this exercise will have a very fundamental hurdle to cross in how is it that they are going to alter in a select committee, moved by a motion, the proprietary rights guaranteed as a fundamental right by a Constitution. Review it and reduce it, because that is the expressed tenure of my friend’s motion.
Someone mentioned a former President’s name and said that it seeks to reduce only his pension. Well he is perhaps in the strongest position, because it has accrued to him already. On what basis are you going to take it away? Because he has demitted office and he is entitled to a pension from the date of his demission of office. Therefore, I do not know on what basis my friends are going to get this to operate retrospectively to take away vested rights.
We know that a fundamental cannon of construction is, that laws must be construed in such a manner not to deny and deprive vested rights and proprietary interest and that is another fundamental hurdle that one would have to face.
Pensions becomes payable from the time the pension holder is entitled to it – and allowances and benefits. In the terms of a President, it begins from the day that he demits office. There is no age limit for those who feel that a certain person must reach the age of 55. That is not how Presidential pensions operates, it operates from the time that he demits office. [Interruption]
This is a motion that is taking this Parliament down a road of unconstitutionality that is the ultimate result that will flow from this motion. Therefore, it is extremely difficult having recognised the legal arguments and principles that I have raised and my friends on the other side can continue to be reckless and they can continue to be vengeful, that will not detract me. The record of this Assembly will reflect that as a sitting Attorney General, I raised the objections which I have raised. None of them have gone into any personality; none of them has sought to defend any position. All I have sought to do is to draw to the attention of my colleagues, the legal hurdles that will befall them and I consider that my responsibility and my duty to this Parliament.
I thank you very much, Sir. [Applause]
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