The Constitution (Amendment) Bill 2013
5423 14 Feb, 2013
Mr. Nandlall: I did not start Sir. Thank you very much Sir, for inviting me to speak on the Bill which is before the House. Sir, a lot has been said by the speakers who preceded me. A number of accusations have been levelled against the Government. Many legal arguments have been advanced justifying or seeking to justify the propriety of the Bill which is before this House. Therefore I will attempt very briefly to deal with the arguments which have been raised.
This Bill is predicated upon a theme which seeks to give autonomy to certain institutions in our country. Some of them are created by the Constitution; some have their origin in individual statutory provisions. We, on this side, have been accused of fighting against the movement of conferring autonomy and independence upon these tribunals, but any examination of the laws of this country, the Constitution of this country and our record in Government will show beyond any shadow of rational doubt that our record has been one of the devolving power away from central Government and reposing it in authorities right across the public sector of this country. We have chosen statutory mechanisms to do so and we have passed a series of legislation creating statutory bodies.
Only a few sittings ago, we created an entity that is called the Deeds and Commercial Registry Authority where we removed control from a Minister, the Minister of Legal Affairs and we reposed it in a board that is going to be comprised representatives of various entities, including the private sector, the Guyana Bar Association and other stakeholders.
Sir, there is also a whole plethora of statutory agencies and I will just share a few - the National Agriculture and Research Institute, the Guyana Development Livestock Authority, the Guyana Revenue Authority, the Guyana Lands and Survey Commission, the Guyana Energy Agency. It is just to name a few where there has been the transfer of power from central Government, from the executive, and they have been placed into semi-autonomous agencies which are controlled, all of them, by a board. We have also used the mechanism of the Public Corporation’s Act to establish a number of public corporations. Two immediately come to my mind, the Georgetown Public Hospital Corporation and the New Guyana Marketing Corporation. Those are two public corporations that used to fall under the administrative control of central Government and they have been removed from that strata and architecture. They have been placed in their own province, being controlled by a board and given statutory autonomy and independence.
The argument cannot be intelligently advanced, that this is a Government that seeks to control. Our record shows exactly the opposite of that. Take for example, my friend Mr. Ramjattan, who is not here, he is still enjoying liquid refreshments…
Mr. Speaker: I will have them bring Mr. Ramjattan.
Mr. Nandlall: They may seriously have to bring him, Sir.
Mr. Speaker: No. As I indicated on the last occasion when, immediately after,… Mr. Bond sought to leave I invited him to remain to hear arguments from Mr. Nadir because I think in a debate that is the way it should be. It is something Mr. Ramkarran was very keen to point out when I was a Member, so we are inviting Mr. Ramjattan to come, at least for the first fifteen minutes of your presentation. I do not know what will happen after that.
Mr. Nandlall: I prefer your earlier linguistic formulation, Mr. Speaker that you will bring him. That may be more appropriate in the circumstance.
Mr. Speaker: It is to invite him.
Arguments were advanced that we are attempting to cut staff at the Audit Office. Well it is public knowledge that we inadvertently managed to get a number of office holders of that office confirmed, courtesy of young Mr. Trevor Williams when he did not show up at a Public Accounts Committee. We are staffing these agencies and yet we are being accused of holding back staff and starving these agencies of resources.
We now come to the Judiciary. A lot have been said about the Judiciary. The impression which has been conveyed here, unfortunately, is that we have a Judiciary that makes decisions based upon the pull of the string of the purse. That was a point that was candidly canvassed in this Assembly. I wish to apologise to the Judiciary on behalf of this Assembly. We were told that judges make decisions based upon the moneys that are waived to them. That is what our Judiciary was reduced to in this Assembly. The great judges, former Chancellor Stoby, the Luckhoos, Chancellor J O F Haynes, Chancellor Messiah, Chancellor Crane and Chancellor Bernard, all operated under the current architecture. The argument here is that they all ruled based upon the moneys given to them by the Minister of Finance. That is the substratum of the argument. It is an onslaught on the integrity and dignity of the Judiciary.
We have, at least, under this Administration…
Mr. T. Williams: Mr. Speaker, a Point of Order, I think, in the absence of Mr. Ramjattan, who was misrepresented by the Hon. Attorney General, he made an example saying that the purse can influence; he did not say that the Judiciary in Guyana and judges are influenced by the purse.
Mr. Nandlall: Sir, the press is here and the public gallery is there; I do not have to go back and forth. Everyone heard what Mr. Ramjattan said.
Mr. Speaker: Very well. The Hansard Department, before the evening is out, will clarify it. We will proceed with the debate.
Mr. Nandlall: I am happy. In fact, when he was speaking, I asked that the press record his speech. We will show it on television. We are not in doubt.
Mr. Speaker: Are you managing the press core from your chair?
Mr. Nandlall: No, I invited the press.
Mr. Speaker: What is going on here?
Mr. Nandlall: Getting back, with your permission, to the debate, the judicial independence... We have a track record, in this Administration, of being absolutely committed to the concept of judicial independence as recognised and embraced by our Constitution. It is under this Government that the Constitution was changed to entrench and secure, further, the appointment of people to the highest offices of the Judiciary by making it only possible with the agreement of the Leader of the Opposition. This Administration did that.
It is our Administration which added the Caribbean Court of Justice to our judicial hierarchical structure to make it the highest Court of the Land to strengthen our Judiciary, institutionally.
It is our Government that recently passed new rules which will govern the Judicial Service Commission. They were passed right in this Parliament in our continuous effort to entrench the independence of the Judiciary.
My friend was speaking about the Director of Public Prosecutions (DPP) being manipulated. The DPP exercised her independence quite recently when she advised that a sitting Commissioner of Police, under this Administration, be charged with a criminal offence. That is an exercise of independence at work.
Mr. Speaker: Hon. Attorney General (AG), by your argument, it could also mean that up until recently, or before recently, she was not. So, you need to clarify that.
Mr. Nandlall: No, I did not say that. I am giving an example of a matter, quite recently, of some public notoriety where the DPP gave another demonstration that she exercises the powers of her office independently and fearlessly. [Mr. Ramjattan: Strengthen it with financial independence.] I will deal with the finance independence just now.
We do not have the unfortunate history, in pursuant of a policy of party paramountcy, to fly a party flag in the Court of Appeal of our country. We do not have that sordid history and record; the other side has that record. [Member: Which side?] The People’s National Congress (PNC) has that record. Therefore, when you speak about independence of the Judiciary, you must not forget what we had to rescue the Judiciary from. We had to rescue the Judiciary from that. The party flag was flown higher than the Guyana flag.
I come now, Sir, to Article 222A, which I do not think has been read, or I do not think it has been understood. Article 222A states:
“In order to assure the independence of the entities listed in the Third Schedule -
(a) The expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund…”
I pause there. That position obtains. [Mr. Greenidge: Where?] It is funded as a direct charge on the Consolidated Fund, and this gentleman is asking me where. [Mr. Ramjattan: It is a budget agency.] It is funded as a direct charge on the Consolidated Fund. I continue:
“… determined as a lump sum by way of an annual subvention approved by the National Assembly…”
That obtains in this country. At the beginning of every financial year, the Minister of Finance comes here and brings a lump sum to be approved by the National Assembly. This National Assembly attempted to cut it the last time and the Chief Justice knocked it down. I am going to deal with that just now. I continue:
“…after a review and approval of the entity’s annual budget as part of the process of the determination of the national budget;”
That is what takes place. The determination of the National Budget is done by the Minister of Finance. He takes the budget of these agencies and he takes it into account in determining the National Budget which is presented to the National Assembly. What is so difficult? This is the simplest of English Language, and there is a linguist on your side.
I am going through this line by line. Sub-paragraph (b) states:
“each entity…”
So, we speak of the Judiciary or the Ethnic Relations Tribunal.
“Each entity shall manage its subvention…”
When it receives it here and goes out in the National Estimates and is approved, it goes to the agencies.
“Each entity shall manage its subvention in such manner as it deems fit for the efficient discharge of its functions…”
That happens.
“...subject only to conformity with the financial practices and procedures approved by the National Assembly to ensure accountability…”
Such as are contained when this National Assembly promulgated the Financial Management and Accountability Act. What more can I say?
“...and all revenues shall be paid into the Consolidated Fund;”
Which part of this simple English Language that I have read do you not understand? Raise your hand and I will explain again.
[Members of the combined Opposition raised their hands.]
Sir, I now turn to buttress what I have said. It is not my problem if I am not understood. That is a disability for the less endowed. God, in all his omniscience, did not endow us equally, Sir. It is not my fault.
I have, in my hand, for the record of the Assembly, the ruling of the Hon. Chief Justice in the matter of 216W of 2012. It was the Attorney General against Mr. Raphael Trotman, David Granger and Dr. Ashni K. Singh. This is the Budget cuts judgement of the Chief Justice. The Chief Justice dealt with Article 222 of the Constitution because one of the entities which were cut unlawfully by this Assembly was the Ethnic Relations Commission. Therefore, the question of Article 222 came up for interpretation. [Interruption]
The Chief Justice, after reciting the expressed provision, Article 222, the Chief Justice said this on page 20:
“Here there is no question…” [Interruption]
Sir, may I be protected?
Mr. Speaker: Protected. Hon. Members, allow the Hon. Attorney General to continue. Many Members have approved me today, and before today, about the possibility of an early rising because of the nature of the day and all of that. So we can go on until tomorrow or we can allow us to proceed. Go ahead Mr. Nandlall.
Mr. Nandlall: Speaking of the Ethnic Relations Commission being one of the scheduled entities as per 222A, the Chief Justice says this on page 20 of his judgement:
“Here there is no question of approving any estimate of expenditure prepared by the Minister of Finance.”
So all this argument of coming here for approval, the Chief Justice is saying no, that does not have to happen. [Mr. Ramjattan: Yes, well he is wrong.] Now you are hearing that the Chief Justice was wrong. Just now it was Anil Nandlall who was wrong. The Chief Justice is wrong. What is under review by the National Assembly is not any estimate prepared by the Minister, but the entity’s annual budget for the purpose of determining what lump sum is necessary to meet the expenditure of that entity for the financial year.
Here the National Assembly makes a lump sum determination based on the review and approval of the entity’s own budget. The doctrine of separation of power is not infracted or infringed. This is the ruling of the Chief Justice.
“One of the entities listed in the Third Schedule to the Constitution is the Ethnic Relations Commission. Therefore, it behoved the National Assembly to have determined a lump sum by way of an annual subvention based on a review and approval of the an annual budget of the said Commission to cover its expenditure. It is difficult to see how the National Assembly could have performed its Constitutional duty in making a determination that the sum of $1 was a lump sum sufficient.”
That is why he ruled that they were wrong. That is the problem I have; when the Court pronounces on the propriety of the conduct of this Assembly, they are saying over there, candidly, that the Chief Justice was wrong. They will do it again.
“A dollar was a lump sum sufficient to meet the expenditure of the Commission for the financial year based on the review and approval of the Commission’s annual budget, particularly having regard to the fact that the Constitution itself has imposed a multiplicity of functions on it and expressly provides for its establishment of a Secretariat. Such a determination [that is of one dollar by the bright people here] was no more than a purported determination which was not in consonant with the proper performance of the National Assembly’s constitutional duty. It was a consequent nullity that the failure to perform its duties in consonant with Article 222A [the same one all the time] cannot operate to preclude the annual expenditure of the Commission from being a direct charge on the Consolidated Fund as mandated by Article 222A.”
That is it from the Court. So, Sir, what you have here is everything that has been said on that side regarding the legality of Article 222 in its current construct and the way it is being administered currently, the Chief Justice has lent the Judiciary’s imprimatur to it in an express ruling. This is a final and conclusive settlement of the laws of our country.
The lawyers who appeared here…I will read it for the Assembly.
Mr. B. Williams: Sir, on a Point of Order, Mr. Nandlall was in Court on Monday when he went to reopen this matter...
Mr. Nandlall: That is not a Point of Order, Sir. Please protect me.
Mr. Speaker: Okay.
Mr. B. Williams: The Hon. Chief Justice indicated that he would be continuing in that same action, 216W. In other words, it is not true for him to say...
Mr. Nandlall: That is not true; this is the budget cut case.
Mr. Speaker: Hon. Members, very well. What is the action number on that one? We have too many I think.
Mr. Nandlall: This one is 212 of 216.
Mr. Speaker: And the other one I think is 94…
Mr. Nandlall: The other one was filed this year.
Mr. Speaker: 94 of 2012 was filed in… [Interruption]
Mr. Nandlall: The lawyers who appeared for the National Assembly were as follows: Rex Mc Kay - Senior Counsel, Sase Narine - Senior Counsel, Mr. Basil Williams, Mr. Debra Oustman Backer, Mr. Robert Corbin, Mr. Joseph Harmon, Mrs. Bettina Glasford, Mr. James Bond, C M L John - all of them appearing.
Mrs. Backer: Mr. Speaker, on a Point of Order, I think the AG should be invited... [Interruption by the Attorney General]
Mr. Speaker: Hon. Attorney General, I am hearing a Point of Order. I would like to hear the Point of Order please.
Mrs. Backer: I was just inviting the AG to reconsider. He indicated that these people, and then he called a long list of names, appeared for the National Assembly.
Mr. Nandlall: For the second in defendant, my apologies. [Mr. B. Williams: Who was that?] Mr. David Granger.
Mrs. Backer: Please withdraw that incorrect…
Mr. Nandlall: I withdraw it. For the Speaker, the lawyers were Mr. Khemraj Ramjattan, Mr. Nigel Hughes, Mr. Christopher Ram and Mr. Royce Gilford. That is the record. I do not want anybody to believe that the defendants were not represented. They all were there so they are well aware, or they should be aware, of the ruling of the Court. There is no question about the propriety of Article 222 in its present construct. Nothing is wrong with it! It has been interpreted and upheld by the Chief Justice of Guyana.
The other point that I would like to make is that my Friends, by some inexplicable mental process have convinced themselves that they can amend Article 222A by a simple majority. They have convinced themselves so. There are several doctrines which I would like remind my Friends of which are known to lawyers, but I intend to remind them of them. One of the more important of these doctrines is the entrenchment mechanism inhere in our Constitution. I will read, briefly, what Rosary, Ballantine, Commonwealth Caribbean Law and Legal Systems say on the matter under the caption ‘Entrenchment Of Constitutional Provisions’, page 114:
“All the Constitutions in the Commonwealth Caribbean contain provisions for entrenchment, whereby certain of their provisions may not be altered except by a special majority of Parliament or, in some cases, a referendum. This confirms the special nature of constitution, placing it in a different category to that of ordinary legislation.”
In Hinds against the Queen, a case coming out of Jamaica, the Privy Council said, of the significance of entrenchment... I am quoting from the judgment.
“The purpose served by this machinery for entrenching is to ensure that those provisions which were regarded as important safeguard by the political parties should not be altered without mature consideration by Parliament and the consent of a larger portion of its Members than the bare majority required for ordinary laws.”
What this Bill seeks to do is to alter the Constitution. Therefore, every provision in this document enjoys a security of tenure, so to speak, in varying levels, depending on the significance of the particular Article. Our Constitution, in that matrix, is no different. That entrenching provision manifests itself in our Article 164.
Article 164 of the Constitution is one of the most powerful articles in this Constitution. Article 164’s side note reads “Procedure for altering this Constitution”. This Constitution cannot be amended other than going through the door of Article 164. It cannot! If one looks at Article 164, it has several provisions. It lists the provisions that can be changed by a bare majority. It secondly lists those provisions which cannot be changed by bare majority. It lists the provisions which can be changed only by two-thirds majority and it lists...
Yes, Sir, it lists the provisions which can only be altered by way of a referendum. This is basic Constitutional law. Article 164, itself, obviously will receive the highest form of entrenchment. Therefore, Article 164 can only be changed by a referendum. [Mr. B. Williams: Where is that?] I have to read everything. Article 164 (2) (a) states, “this article…” and it continues to list all the articles. “This Article” meaning 164 and it lists all those articles. You have to read it and you will see. [Mr. B. Williams: Show us where Article 222A is entrenched.] I am going to get to that. I just received a 15-minute extension; time is on my side. Do not hurry me. I am doing you a favour. [Mr. Ramjattan: You are wasting your time.] You are very spirited Mr. Ramjattan.
Article 164 can only be changed by a referendum. I ask for Dr. Rupert Roopnarine to lend me his ear because he was part of the process. In 2001, when we, as political parties in this National Assembly, embarked to reform our Constitution and to establish a Constitutional Reform Commission, we did not receive a referendum to do so. We, together in this Assembly, could only have mustered a two-thirds majority. That was recognised from the beginning of the process.
Therefore, it was also recognised that there are several articles here that could have been changed, and there are several articles which enjoyed two-thirds majority which were actually changed. Since you could not alter Article 164 but by a referendum, you had a predicament because you were adding provisions to the Constitution. How do you deal with it? You cannot expand Article 164 without a referendum. So they were presented with a conundrum. [Interruption by Mr. Williams] You cannot see it Mr. B. Williams. Do not try it.
I went back to the precursor, the 1980 Constitution, and I will use this to demonstrate the point. The 1980 Constitution only has 232 Articles. Therefore Article 164 in this Constitution... [Interruption] It only stops at 232 Articles so no one could add Article 233 without changing Article 164. What the Constitution Reform Commission had to do was to engage in the novel resort of using letters to increase numbers. To get to Article 149, to expand fundamental rights to include rights of child, rights of work they had to do Article 149 (i), (j), (k), (l), (m). But it was still Article 149 because one could not add Article 150 unless one changes Article 164; one cannot change it. So Article 222 (A) was simply added because one could not go to Article 223; Article 164 would have to be changed and there was no referendum to do so. The point therefore is that Article 222 still remains an article that carries a two-thirds majority. Article 222(A) cannot be a new article. It obviously is a part and parcel of Article 222. It is as simple as that. Any court will uphold that.
Sir, all this talk about changing… I heard my friend Mr. Williams saying it is simple. Yes, it is simple to those who do not have the appreciation. It is simple if one does not appreciate it. And I invite my friends, I invite Members of the other side to consult with the Constitution reform notes; they are available. There are two thick volumes; the Clerk has it. [Mrs. Backer: You quote from it.] No, I am not going to educate you more than I am doing. Therefore, it is a constitutional mockery to believe one can just cut something from somewhere and add it to the Constitution. The Constitution is the most supreme law of the land. If we can just add something to it tomorrow it means it is nothing. We cannot even do that to ordinary legislation much less the more supreme organ. Article 222(A) is such an important addition to the Constitution because it entrenches autonomy to so many important agencies including those that my friend has referred to, the DPP, the Judiciary, and all the constitutional commissions. Do you think the framers of the Constitution are so shortsighted they will leave this unprotected so one can just add to it the next day? One has to give Dr. Roopnarine greater credit. One has to give Dr. Deryck Bernard greater credit. One has to give Mr. Haslyn Parris greater credit; Mr. Ramkarran; Mr. Nagamootoo is a contributor – but I think he left to go and study.
Sir, we are big people in this Parliament. We cannot think that this matter is so simple that Mr. Greenidge who is not a lawyer – and I say that with the greatest respect to him –can cut a piece from some place and add it to the Constitution. [Dr. Singh: Basil was his adviser.] Then he needs another one.
In terms of the security of tenure, my friend Mr. Ramjattan accused us of trying to interfere with the offices of judges, with their remuneration, waving money to them and so on when Article 222, the substantive article itself, says that one cannot alter these office holders in the remuneration package to their detriment; that is already here in the Constitution. How can Dr. Singh dangle money to them? [Interruption] We have to have respect, integrity…
I want to refer to another case. I am happy they are distracting me. I am remembering all that I have to say. The case I want to refer to is the Independent Jamaican Council for Human Rights against Marshall Burnett and another, reported at 268 West Indian Law Report, Volume 65. This is a case that went all the way to the Privy Council. When the occasion arose to join the Caribbean Court of Justice (CCJ), of course all CARICOM territories were required to sign onto a treaty to establish the CCJ and to pass municipal legislation within their respective territories to adopt their constitutional and legal architecture to accommodate the CCJ as their highest court. Some had to abolish the Privy Council. In our case, we did not because we had done that before, so we simply had to add a provision to our Constitution, which we did in the 2001 process to bring in the CCJ as our final court of appeal.
In Jamaica, they complied with all the legal requirements. They passed three pieces of legislation to achieve this objective. The lawyers, Dr. Lloyd Barnett and a whole host of Queens Council members, appeared and conceded to the Privy Council that there was nothing wrong with the legislation; they did not conflict with any provision of the Constitution singularly or cumulatively. So the Privy Council asked what is the complaint The lawyers said that the combination of the legislation undermines the whole structure upon which their Constitution rests because the Constitution inherently and expressly guaranteed independence of the judiciary, and the CCJ Treaty allowed the establishment of the CCJ as part of the court system of Jamaica by ordinary legislation; and it could have been done. However, it would have collided with the substrata and foundation of the protection which the Constitution gave holistically to the entire institution of the judiciary. Therefore, the spirit of that independence was defeated, not expressed provisions, the spirit was defeated. The Privy Council ruled all those legislation null and void in the case.
Here there is a worst case scenario. There is a provision of the Constitution itself which is being changed by not going through the proper mechanism to change it. The Constitution says you must do so by a two thirds majority. [Mrs. Backer: Where?] Article 222 which must include Article 222(A)… I just explained why; that is why I went into that historical explanation as to why. So this journey we are embarking upon is one that is going to led to a constitutional dilemma. Once again I will have to advise His Excellency to withhold his assent from this legislation.
Thank you very much. [Applause]
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