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Copyright ©2014 Parliament of the Co-operative Republic of Guyana.

The Constitution (Amendment) Bill 2013

Hits: 3853 | Published Date: 14 Feb, 2013
| Speech delivered at: 38th Sitting - Tenth Parliament
| Speech Delivered by : Hon. Khemraj Ramjattan, MP

Mr. Ramjattan: I rise to support this constitutional  amendment on the ground that indeed it will be rectifying a  major mistake made in the Third Schedule in not identifying all of those constitutionally provided for institutions which, indeed, were not included therein.
It is important to understand, as we evolve as a nation, the necessity as to why certain institutions, constitutional and non constitutional, came into being and why, as we evolve in amending our Constitution, we must appreciate that those changes necessitate constitutional alterations. A Constitution, of course, as you would know, Mdm. Deputy Speaker, as a lawyer, needs amendments constantly so that it can fulfil that organic role it plays in the context of a society that is progressing, a society that is demanding more transparency and accountability.  A Constitution is never written in stone. That is why over the years there were amendments and alterations and major constitutional reform to the extent of what they are today. It is surprising that we are going to get a rationalisation, which came from Ms. Shadick, that only in their judicatory functioning of these offices were they supposed to be independent. Well, I want to say to the Hon. Member that only…  [Mr. Nandlall: Today is Valentine’s Day.]    Yes. Happy Valentine’s Day to Ms. Shadick… that it is not only in their judicatory functioning of that office that was supposed to be independent; it was not only the judicatory functioning of the Supreme Court or the judiciary that was supposed to be independent when we passed this Act in 2001 to give a list of the entities that were supposed to be independent. Never was it done. I was part and parcel in this Parliament making the necessary amendments. Of course, not in the Commission, as my learned brother here was, but it was part and parcel of an agreement in which we were going to make constitutional offices independent of the executive branch. It had to be because of the fact that the executive branch generally controls the purse and the finances it could very well be diluted and looted if we did not make them independent entities for purposes of finances.
Institutions such as the DPP, decisions from it and determinations could be bad depending on how the purse string goes. It is an independent institutions, yes, and it is provided for that the DPP shall be independent but this one is also vindicating…, and when the discussions were happening how do we make that institution also financially independent for the purposes of ensuring that if there is a smart Minister of Finance who will dangle the dollar so that a Mr. Ramjattan can be charged for treason, the DPP then can go and do that. That is why the principle, at that point in time, was that we should have financial independence of these institutions so that we can then proceed to ensure independence of thinking and independence of determination of the decision making of these institutions. The dollar makes certain institution holders dollar and the pressure of sending no dollars to them can certainly make decisions go one way as against the other. It was for that reason that we indicated that, yes, indeed, we have to do away with budget agencies regime with certain institutions of the country.
The concept of budget agency is important here. When an institution is a budget agency, such as   Ministries and those other executive organs, not constitutional offices, there can be… What happens with budget agencies is that the Minister literally asks for a budget and if he does not like the budget he can cut it. He can do a number of things in the budget, because they are budget agencies, say that he does not like the expenditure and he can effectively cut it, no matter which is  the institution. Let us say the Supreme Court, the Chancellor, Mr. Carl Singh, himself, organising for better a judiciary, it is no. The Government does not have moneys for this and it cuts this seminar and spending on the books, and so many things. Quite frankly, that is what happened when it is a budget agency. It can then be…, as was argued when the experts came, I remembered, sometime in 2000, before we had passed these major amendments. They indicated that it was true. 
Important, significant, organs, such as the Supreme Court,  the Auditor General Office, the  Director of Public Prosecutions, which constitutional offices derive from certain provisions from the Constitution, the Public Service Appellate Tribunal, the Ombudsman, Police Service Commission, the Human Rights Commission, which was recently formed, if  they are not given money they are not going to be in any platform to make determinations that might very well be the best for the country, in the national interest. It was for that reason then that we made provision for almost all of these institutions to be independent. When we say independent we also indicated financial independence. When it came out, the Schedule only had these listed as independent entities – the Ethnic Relations Commission, the Human Rights Commission, Women and Gender Equity Commission, because obviously that was upper most in their minds. All of these Commissions were supposed to be Commissions that were to make decisions, determination and complaints that there is ethnic discrimination, and so on. They put those but effectively the judiciary is also put and the office of the Auditor General.
What I am saying here, by virtue of those latter two being there, when there is the Office of the Auditor General, it shows that indeed the Government made a mistake because the Office of the Auditor General, if it was not financially independent of the Ministry of Finance, can be at a yo-yo of the Minister of Finance. The point is being made; it literally can control the Auditor General because it controls the purse and that is exactly why the Third Schedule here has the Office of the Auditor General, but what was done in the Fiscal and Management and Accountability Act, which is going to be a consequential Bill that we are going to deal with, was that it was put   as a budget agency. In that budget agency, every year, now, the Auditor General goes to the Minister of Finance with his budget. He said that he wanted twenty-two more officers; the  Minister of Finance told the Auditor General that  he knew better of that office, and would  say, “Look, you only take fifteen”, and the quality and whatever. Listen to me. I am stating the ballot as exactly what transpired in budget agencies.   [Mr. Nadir: It does not.]    It does. I have got it even from very high authority within these institutions, that when they send their budget…If you want to prove that it does not happen we will ask those budget agencies, such as the Director of Public Prosecutors, what budget did they send in, how much was it altered thereafter, and it is even for the Audit Office.
Let me say this: That is why it was a mistake because financial independence is necessary so that the Auditor General can do that which is going to be with credibility and integrity. That was the whole underlining process of why we wanted independent entities made out of these institutions. The Government went into the Fiscal Management and Accountability Act and put them as budget agencies and with that now it can then do what it wants. I have coined a term here - I will repeat it just now - “exercise of control freakism”.
This Government, over there, loves to control moneys, not only does it siphoning it off in National Industrial & Commercial Investments Ltd. (NICIL), but  then goes and builds hotels with the moneys and by pass the  National Assembly, as  it is in articles 216, 217 and 218. No. It also has this very slick method about it and it does it in the way of budget agencies. It controls. It is part of control freakism. That is what it gets here. Now we are trying to have more transparency and accountability at the level of these institutions. These accountabilities are required for purposes to ensure that our money is better spent and also the institutions, which are created, under the Constitution, can have what is called absolute independence in the thinking of what they are going to do for purposes of determining. 
What makes a person very much feel that that person is going to decide this matter in the merits is that nobody is going to cut the budget next time around if a decision is going to be made in this way or  in that way. When the Government controls the purse strings, by making it a budget agency, it can control the thinking. Imagine that. The Government controls the Supreme Court then by having…It is part of the control that we are talking about. Why did the Government then take the Auditor General out of the audit? It feels that it is wrong for it being a budget agency. Why it never made the Ethnic Relations Commission a budget agency? The Ethnic Relations Commission was indeed an independent entity. We have a different reason why we did cut the budget on that last occasion.    [Mr. Neendkumar: You do not have respect for the court?]    Of course, we have respect for the court. I am saying that even from the highest quarter of that same court, it has been complained about that its budget was mangled and twisted.   [Mr. Neendkumar: Now you are freaking out.]      I am not freaking out. The proof could very well be seen by what budgetary allocations it asked for and how much was granted. That is so accurate. I might very well bring it here as to what was sent to the Minister of Finance and what went back with changes.
Now that is why we come to the next question, under article 222A (a), because it was essentially   mentioned as a function of economics. I could understand, because the Government did not want to have certain institution holders heading those institutional entities, saying we want $3 billion for scholarships. No. It was provided for in article 222(A) (a) that yes these must be entities but they just cannot come demanding that they will want as much money as the economy cannot provide for. It is in that same article 222A, paragraph (a).  I do not know what the Hon. Member Ms. Shadick was saying, that it is only the office holder.
“In order to assure the independence of the entities listed in the Third Schedule –
(a)  the expenditure of each of the  entities should be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention approved by the National Assembly after a review and approval of the entity’s annual budget as a part of the process of the determination of the national budget;
(b) each entity shall manage its subvention in such manner as it deems fit for the efficient discharge of its functions,…”
This is very important now.
“…subject only to conformity with the financial practices and procedures approved by  the National Assembly to ensure accountability; and all revenues shall be paid into the  Consolidated Fund;”
Here it is, this same article 222A, stating that although these entities are going to be listed as independent entities, financially, they have to do certain things in relation to those finances in conformity with financial practices and procedures approved by the National Assembly.
This Government, however, has never come for purposes of ensuring what those financial procedures, or approved, in relation to these independent entities... What it has done was to avoid that and to allow, what is called, a taking away of that which is supposed to be independent for them to become budget agencies in the Fiscal Management and Accountability Act (FMAA).  Largely, what we were trying to give, such as, the Office of the Auditor General its independent audit status; the judiciary is supposed to be an independent entity. What is there now, in the FMAA, is that of a budget agency, the Supreme Court. It has not been called the judiciary here but this was passed, although the Constitution states that an independent entity, under the Tenth Schedule, shall be the judiciary. The Government then, this coming after that, said that it will be a budget agency and it was put under the Schedule of budget agencies in the Fiscal Management and Accountability Act, stating the Supreme Court. This is unconstitutional now that if it is dawn on the National Assembly we should correct it.
How come the Constitution states that it is an independent entity under the Tenth Schedule and it is put, under budget agency, the Supreme Court? That is why I am saying that it was a mistake, but the mistake is even wider, because in the Constitution, itself, the provision of the Constitution, that gives the DPP, the Ombudsman, the Public Service Appellate Tribunal independent status, meant then that this Third Schedule ought to be a longer Schedule with all of them included and a minus of this Schedule that made all of them budget agencies. We must correct it. We must correct the Constitution by this Constitution amendment and the consequential Bill that is coming immediately after this. We must delete them from these budget agencies. That is what we are doing here.
It is not as if we have not made mistakes before this National Assembly. Only the other day with the Sexual Offensive Act we took away the accused right to give a statement after a preliminary inquiry (PI), and what we did? After seeing the mistake, we came here and it was corrected. All of this talk that we cannot correct that which the framers at the reform process had intended and to explicitly stated now that we cannot do that that articles 163 and 164 are preventing that, it requires a two third-majority and that article 222 is different, it is the same, from 222A (a), is all minor in intentions of the framers of that constitutional reform process, but we must not allow that. They are going to have what is called a flawed Constitution, a flawed institutional regime if we were to allow that to happen.
I am glad that the person, who brought it, knew a couple of the things about the financial regulations, Mr. Carl Greenidge. I, myself, had some problems with it because I did not understand that what the budgetary agencies were, but there is a certain regime why they are called budgetary agencies as a special regime called independent entities. What we intended, by independent entities, was that all those constitutional offices... An Ombudsman is appointed and he feels that he has all the powers to do the administrative works, such as to hear complaints and then make remedies, but then his money is cut when he starts making remedies against the executive branch. The Government cuts the budget for him. What does the Government do? It is then knocking off the independence of the institution in determining matters in making decisions and that is what we are talking about here, all of  these, and then the Government pulls the purse string one way, it  gets its decision one way. That, we try to avoid in that constitutional reform process by stating we shall now create in article 222A (a), what we called, independent entities.
It was obviously overlooked or it was a deliberately sinister by virtue of only this list and when we did this one here, of course, the PPP, at that point in time, had the majority so it could have done it. It did it but it obviously was overlooked by those sharper minds.  I will concede that the question was asked of me, of Mr. Kowlessar, and he said well it was okay - “Fine, that is all right” - but now that we see it is  as  the Constitution of America, a slave meant property. That was just property and then there was the evolution of the society, it was wrong and then it could not be property. We are saying, for the accountability, that that evolutionary of this country independent entities must be more than that which is included here - it should be. 
The DPP must be financial independent. Why is it only the Office of the Auditor General must be independent? Why is it only the Indigenous Peoples’ Commission must be independent? Why is it not the Police Service Commission? That is the argument. Is it not clearly the situation that we wanted them to have financial independence, because all these institutions, which we had in mind, were institutions that were going to determine matters generally against the executive branch? This executive does not like to be scrutinised, nor to be searched, nor to be in any way supervised and so it wants to retain it, and it will use all the mangled arguments that only in an adjudicatory function they are independent. No. The best adjudicatory functioning will happen when there is the best financial independence of the judges. That is why inherent in the judges status are their salaries, and this and that must not be…, the security of tenure, and so on. That is what we were trying to do here - give financial independence.
I want to indicate that we will not be dealing in principles and we will be largely archduke unprincipledom if we were to stand here and say that is not what the constitutional reform process had in mind. If we by certain sinister motive or stealth had done wrong, in the national interest, it is especially important, at this point in time, that we correct that wrong. We must appreciate that we have made mistakes and those mistakes were remedied here. All this talk that we must not do it, in the context of what is happening here, is, again, absolutely a mistake. Do not allow it to happen. Let us get on.
Sound financial practice is what is also going to govern these independent entities. We cannot have the argument that say the Minister of Finance will come and say that Mr. Carl Singh used to have $1.8 billion for the judiciary, but this year, because it is given independence status and the budget must be passed, he is asking for $10 billion.   [Mr. Hinds: What is the constraint?]    The constraint is that the financial practices based on the National Assembly… Bring out the National Assembly’s agreement and that is what the Minister of Finance is not reading. He cannot come here and say he wants $10 billion, we could stop it. Listen again, Mr. Prime Minister.
“…each entity shall manage its subvention in such manner as it deems fit for the efficient  discharge of its functions, subject only to conformity with financial practices and  procedures approved by the National Assembly to ensure accountability;”
If Mr. Carl Singh were to come here - I will use his name, learned Chancellor - and ask for $10 billion and when we look at his budget last year, his budget last year was $1.2 billion. “Why would it be this $8.8 billion, this massive increase, Mr. Chancellor?” Then the Mr. Chancellor will have to state the reasons and if he does not state the reasons this National Assembly could say let it go back to $1.2 billion. That is what the Constitution provides. It will be largely ludicrous for the Minister and the Attorney General to say that it has to be a budget agency controlled by the Minister of Finance. Independent entities are controlled by this National Assembly. When it is a budget agency the Minister could do what he wants - the Minister could cut it; the Minister could avoid payments for a line item; the Minister could do whatever, or the virement, or whatever it is called it in that institution, and put under lubricants and oil, take the money and do something else and all of that.
Whenever, however, it is an independent entity the Minister does not have that power and that is the reason why we have this. It is important then that we understand the concept of budget agency as against independent entity, the reason why we want certain institutions to function better and the functionality of these institutions will be better if we give them the independent status that this constitutional amendment seek. It is also remedying an error that we made because the error obviously was made. The Auditor General is in the independent entity and also a budget agency. As we know, by Order 20 of 2012, the Minister of Finance knew it was a mistake, in relation to the Auditor General, and he then passed the order to delete it as a budget agency. Why then did he do that? He did that obviously because it is a contradiction in terms. It could not have been an independent entity and also a budget agency.  It indeed was corrected. If it was corrected that means that the list was wrong. If there was one there, it was wrong. We were saying that there must be more there to the extent of all those other institutions - Ombudsman, Public Service Appellate Tribunal, and so on - for purposes of remedying it, then, this amendment does just that.
We will support this and we hope that the Government now sees the light as to why it should be supported.
Thank you very much. [Applause]

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