The Courts of Guyana14774 10 May, 2012
Mr. Greenidge: Thank you very much Mr. Speaker. This motion carrying my name is a very important one. Compared to the others, it is especially important because it seems to fly in direct contradiction with the provisions of the Constitution of the Co-operative Republic of Guyana.
The situation in which we find ourselves today is a very interesting one and we can, I think, see the lengths to which our colleagues are prepared to go in order to ensure that some of the entities that are ascribed privileges in the Constitution of the Co-operative Republic of Guyana are somehow frustrated in enjoying those privileges. More specifically, the motion suggests that the Constitution of the Co-operative Republic of Guyana grants specific privileges to the judiciary and the reason for this is the close link among the rule of law, civil rights and democracy.
The Separation of Powers in English-based Westminster system is the pillar of an approach which seeks to strike a balance – the balance of power among the three branches of government by acknowledging their supremacy and their specific domains and giving them more power to unduly influence or control the other branches. That is my understanding of the concept underlying the separation of powers.
The rule of law itself, the bodywork of a democratic society – and it is also important in the operation of a market economy...if the rule of law is to be held, it is essential, therefore, that there should be an independent judiciary because that enables the markets to operate on the basis of predictability, fairness and so forth. The rule of law requires that the courts have jurisdiction to scrutinise the actions of Government to ensure that they are lawful, in other words. That is the point here. And in modern society, the individual is subject to controls imposed by the Executive in respect to almost every aspect of life. And since those laws affect us in so many different ways, we need to be able to challenge their legitimacy and the legitimacy of Executive actions, and that requires an independent judiciary.
The Constitution of the Co-operative Republic of Guyana is consistent with many of the countries within the Commonwealth and those principles can also be seen enshrined at a more global level in terms of the United Nations (UN), for example.
The seventh UN Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan on 26th August 1985 to 6th September, 1985, and endorsed by the General Assembly resolutions 40/32 of 29th November, 1985 set out the following basic principles to assist member states in their task of securing and promoting independence of the judiciary. It includes a number of things. I am not attempting to set out all the requirements of an independent judiciary but I am concerned as to those that pertain to the financing of a judiciary. And in that regard, of the seven principles that were set out in the UN Declaration to its member states is no. 7 which refers to the duty of each member state to provide adequate resources to enable the judiciary to properly perform its functions.
In 2003, the Commonwealth Heads of Government Meeting in Abuja, Nigeria endorsed the so called Latimer House guidelines on the relationship between the three branches of government. These identified the requirements for judicial independence. These Latimer House guidelines have been the subject of many formulations but what I would like to highlight are two aspects. They speak to financial independence and administrative independence.
You would be aware, Mr. Speaker, that more recently the United Kingdom (UK), in the wake of the crisis or changes that had to be implemented in relation to the lower lords and the removal from the House of Lords, established a supreme court. And the debate around that is still ongoing in terms of a number of factors associated with the issue of independence and the machinery of getting funds to the judiciary and to the courts. What I can say, in summary, is that it reflects on the part of the Judiciary, the affair of becoming a branch of the Executive. The lower lords are concerned about the need to be free to run the courts themselves...and that if they have a chief executive, a registrar who will be answerable or accountable to the courts...and they also reflect concerns about curbs and recruitment and salary levels. And there are issues pertaining to capital costs – maintenance of buildings and facilities. All of these impacts upon the capacity to deliver service at a quality and at a speed recognised as acceptable. And one may have seen, recently, some rather sharp exchanges between the Justice Secretary, Kenneth Clarke, and two of the lower lords. Kenneth Clarke took umbrage over something that they said and pointed out that the UK Government had been scrupulously following or recognised the need to keep the Judiciary independent and that the mechanisms it had in place for keeping it independent would ensure that it is able to get the resources it needs to operate effectively. He pointed out, in passing, that the Ministers of Government scrupulously avoid questioning any judgements made against the Government and they do not comment on court judgements.
The UK’s mechanism for dealing with the need for financial independence is an interesting one. It ended up with a situation in which once the Treasury scrutinised the bid, the request by the Judiciary for funds, it is voted on in Parliament and the funds go directly to the Supreme Court from the Consolidated Fund rather than via any other entity. In effect, that ring-fences the Supreme Court budget and ensures that it cannot be touched by Ministers. In other words, the Chief Executive, the Registrar, is solely responsible for the administration of the Court in accordance with the direction of the President and the funds are free from ministerial control. And after that, of course, the normal regime of accountability would apply. The Audit Office will check on the expenditure after the fact and if the Public Accounts Committee wants to examine anything that has been done, that can be undertaken.
I think it is important to understand that this idea of ring-fencing or block vote is very important. And in the context of the UK, it does not solve all of their problems but it is a principle that is not alien to us. I will tell you what I mean by that. I am saying that, in effect, the motion which cites Article 122.A of the Constitution of the Co-operative Republic of Guyana speaks to this question of the independence of the Judiciary and, more specifically, the financial dimension and the administrative implications of the independence of the Judiciary. Article 122.A speaks to:
“All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and other form of direction and control.”
At the same time, Article 122.A mentions:
“...all courts shall be administratively autonomous and shall be funded by a direct charge...
And this is the nexus between the points I was making earlier.
“...upon the Consolidated Fund; and such courts shall operate in accordance with the principles of sound financial and administrative management.”
So the Constitution of the Co-operative Republic of Guyana recognises the same point I made in relation to the British courts, the need having received the resources as a block vote or as a lump sum to adhere to accepted principles. It is also interesting for me to refer you to Article 222A (a) of the Constitution of the Co-operative Republic of Guyana which has something else to say on this matter. It deals with the overarching clause on financial autonomy. If you have a copy of your Constitution, it is on page 224 and under it speaks again:
“...the expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund...”
The entities in question are captured in the Third Schedule, page 247, and those entities list the Judiciary and, as we are here, the Office of the Auditor General. I hope I am making myself clear. In other words, the Constitution of the Co-operative Republic of Guyana is unambiguous...
Mr. Speaker: Are you speaking to the Judiciary or just the Auditor General’s Office?
Mr. Greenidge: I am speaking to the Judiciary. I mentioned the Auditor General’s Office in passing.
Mr. Speaker: Sorry
Mr. Greenidge: The motion that I am addressing pertains to the Judiciary. I just wanted to make it clear that it was not the only entity mentioned in Article 222A as having a right to be in the Third Schedule and a right to having direct charge on the Consolidated Fund and a block vote.
Mr. Hinds: Mr. Speaker, I know that we will get on to the Auditor General’s Office, but I would like to say here at this particular moment...
Mr. Speaker: Is it a Point of Order, Hon. Prime Minister?
Mr. Hinds: Yes Sir.
Mr. Speaker: If it is a Point of Order, I will entertain it.
Mr. Hinds: Sir, maybe I wanted to – maybe it is not the right time – challenge the Hon. Member talking about the Auditor General’s Office. He mentioned the Auditor General’s Office as listed and Government’s position is that it is in accord with what is required by the Constitution of the Co-operative Republic of Guyana and the other Acts on the Auditor General’s Office.
Mr. Speaker: Hon. Prime Minister, I think we gathered that. There will be a full debate on this issue later on but other Members of the Government side are free to take issue with anything Mr. Greenidge says. I will not recognise that as a viable Point of Order.
Mr. Greenidge: Thank you very much, Mr. Speaker. Normally, I am very solicitous of the need by the Prime Minister to intervene, but, I think, on this occasion I have a difficulty. The fact is that a direct charge on the Consolidated Fund is usually interpreted as meaning a “block vote”. A “block vote” is reflected as a lump sum in the Estimates. It does not require debate or examination by the Minister and it comes to the House, as we see, almost in the same way as the entities...there is a set of entities in the Estimates that are treated in that particular way.
The Fiscal Management and Accountability Act which was passed in 2003 by the Government in return for donor support under the Heavily Indebted Poor Countries (HIPC) has been described by one commentator as the most insidious piece of legislation to have been enacted in recent years and this observation is made by that commentator because of the import that it has for... [Mr. Neendkumar: Which commentator?] Will you please...? ...because the importance that it has for the operations of the court.
When one passes legislation as a Government, one is obliged to honour that legislation. And in honouring that legislation, if one has a difficulty with that legislation then it should not have been passed by that person. The Act itself is a device by which the PPP/C Executive has, in fact, gained control over some key constitutional bodies, including the Guyana Elections Commission (GECOM), the Audit Office and the Judiciary. By making the Supreme Court a budget agency, the Judiciary’s independence has been made subordinate. [Mr. Nandlall: When you were the Minister of Finance, what did you do?] The legislation of 2003 postdates my position in Government and getting angry over it is not going to solve the problem. I did not pass the legislation. Mr. Speaker, in the words of the same commentator, this Act seems clearly repugnant to several articles in the Constitution of the Co-operative Republic of Guyana.
Mr. Speaker: You may mention that there has been a commentator. But if you are going to be quoting from a person, the Standing Orders state that you will have to reveal your sources. You may make a cursory reference, but if you are going to be quoting from a document or statements made by someone else...
Mr. Greenidge: Thank you very much, Mr. Speaker. I am making reference simply to the terminology rather than quoting from the Constitution of the Co-operative Republic of Guyana.
In addition, what I am saying is that the wording of the Constitution of the Co-operative Republic of Guyana is not consistent with the Fiscal Management and Accountability Act 2003 which seeks to add to a Schedule at the back of the ACT, a number of agencies which are termed budget agencies. And in the body of the Act specifies certain powers that the Minister enjoys in relation to the entities that are described as budget agencies.
Even in relation to special-joined rights, for example, it gives the Minister power to grant special-joined rights and also to withdraw them often without notice and without explanation. Those features are inconsistent with the features set out in the Constitution.
One can get a feel for the intention of other countries which use the same formulation as to autonomy by looking for example even at a jurisdiction that is different from the Commonwealth. In the case of the United States … [Interruption]
I am making reference to a jurisdiction other than one in the Commonwealth. In relation to the United States I am saying n order to maintain separation, and I quote from a paper by Mr. Candreva at the Business School in Monterey in the USA:
“To maintain separation among the three branches of the Government while still maintaining the requirement for a consolidated federal budget”
The budgets of the Judiciary and Legislature… [Interruption] If you listen you will understand the relevance of the comment. The Budget for the Judiciary and the Legislature are included with the Executive budget but are not reviewed or modified by a central budget office or the office of management and budget in the right House.
Section 11:05 of Title 31 of the US code of Federal Law addresses the submission of the annual budget. Part (b) says that estimated expenditure and appropriations for the Legislative branch and the Judicial branch to be included in each budget under sub section A(5) of this section shall be submitted to the President before October 5th of each year and included in the Budget by the President without change. The point I am making here is that the idea of having a block vote is not peculiar to Guyana’s Constitution, it is not peculiar to the Commonwealth Constitutions and it is not peculiar even to jurisdictions that have migrated a long time ago from the old British Jurisdiction.
In the current dispensation in Guyana, the Law courts and Judiciary are deemed budgetary agencies for the purposes of budgetary control and the Registrar of the court have been deemed the Accounting Office and the funds are channelled through him and the small secretariat that he has.
Several persons have asked, when this motion was first publicised, whether our understanding in the APNU was that Judges should be given the right to name whatever budget they wanted, or to have whatever increases they wanted from here to there. Clearly this is not the intent. Whatever waver roll financial guidelines the Government sets will apply to the Judiciary. The point is that with having a block vote the Judiciary itself will determine how it is used and the will not be exposed to Ministers and others who will seek to change line items within that allocation which changes may affect the capacity to carry out the responsibilities that they have. That is the purpose of a block vote and the obvious answer is that it leaves the allocation of funds to the Judiciary themselves.
As you well know, Mr. Speaker, there are many ways to skin a cat and muzzling a Judiciary can take many forms. As we have it in Guyana, we see the withholding of benefits to Judges and the Judiciary, the employing of retired Judges who gratuities are then held hostage to favourable decisions, the denial of facilities…
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Your Honour, I rise on a Point of Order.
Mr. Speaker: Mr. Greenidge there is a Point of Order on the floor being made by the Member.
Mr. Nandlall: Some serious allegations are made against the Judiciary and against judicial officers, against Judges saying that they are being held at ransom maybe by the Government, but it shows that they are susceptible to be held at ransom. The Judiciary is not here in person to defend themselves, and I ask respectfully that the Hon. Member withdraw such attacks.
Mr. Speaker: Hon. Attorney General, my sense is that the Member was saying that as it is it may be or can be, but he is not making an accusation to that effect.
Mr. Nandlall: Sir, my friend made reference to a specific case where a Judges pension was held up because that Judge was not giving a decision in a particular manner. That is what he said.
Mr. Speaker: Mr. Greenidge, could you clarify if in fact you said that you were quoting or referring to specific instance of a Judges pension being held up by politicos. If it is so, then that is strong and strident allegation. Unless you have proof to that effect, I will uphold that aspect. So far as what I heard about you saying that, “it can be”, is okay in my view except the aspect of the reference to a Judge’s pension. Please clarify that.
Mr. Greenidge: Thank you very much Mr. Speaker. I did not make any reference to a Judge’s pension, I spoke generally and indeed as we all know there have been allegations by even as distinguished a predecessor to our colleague on the other side who himself had complained about his treatment. I did not want to get to those details and I certainly am not addressing those details. I thought that I was very clear as regards the scope that the legislation provides for pressure to be brought on members of the judiciary. It is the first time I am going to understand that the victim of a kidnap is being treated as the person responsible for the crime.
The “block vote” as I was saying is not perfect, but is largely meets the requirements of the Constitution whereas the Act of 2003 does not. Therefore, why we are proposing what we are proposing is that the Constitution is supreme. It has to be supreme over a Law like the Fiscal Management and Accountability Act and in this particular case the remedy is very simple. Just as the Minister has seen the wisdom of removing the Auditor General’s Office from the Schedule, we require that they observe… [Interruption] Yes, understanding seems to be only a privilege of some people, and that is why we are unable to have sensible dialogue. The request of the nation is that Members agree to delete the words “reference to the Judiciary” entirely from the Schedule; it is very simple. That is what the Constitution requires. Thank you very much.
Mr. Greenidge (replying): I would like to, perhaps, start off with a comment on tone. I have, in the time in this House, since I have been here, I think, been treated with a certain degree of respect and I find that somewhere along the line that is slipping. I make specific reference to the reference by the Minister of Finance to the decisions taken at a meeting with the Hon. President.
I happen to have before me - I am not going to read them - the record that we tried to merge - one paragraph written by Ms. Teixeira and the other paragraph written by myself and the A Partnership for National Unity (APNU), in respect to constitutional offices. All I want to say is that they do not accord with Dr. Singh’s interpretation. The point is, Mr. Speaker, he was not satisfied with simply citing a difference of interpretation, but accused me a lot of other things. I note the point and I will move on.
Mr. Speaker: There was talk of a tape being made of the meeting.
Mr. Greenidge: I have the record submitted by Madam Teixeira. I do not have a tape; I have written record sent to me by Madam Teixeira.
At that very meeting, we also had commitments from the President about the Auditor General’s recommendations as regards institutions such as the Customs Anti Narcotic Unit (CANU) and the State Planning Authority and, yet, the Government says something else publicly.
Secondly, as regards, the role of the Minister, vis-à-vis the institution, I think that this is a very straightforward matter which can be easily solved. It needs an administrative device.
Thirdly, I would like to say that in relation to the Auditor General, all that the Government side felt was needed was the laying of the order by the Minister. It is exactly the same that is being proposed here. There is no reason why same pattern cannot be followed.
And as to this nonsense about Act that I am being heckled with here, I have a copy of the Constitution which speaks to the Third Schedule. We have been told that the Auditor General’s case was different because the Auditor General’s Office has special legislation. Could I know of the legislation that the Indigenous Peoples’ Commission has that is similar to the Auditor General’s Office, in terms of financial structure and otherwise which would have allowed it to be placed on this Schedule under the Constitution?
Finally, let me just say to my colleagues that the issue here…The essence of the proposal pertains to the resolution clause and the resolution clause is straightforward. It does not have to be confused with what was going on before. All we are asking is that this matter be treated in exactly the same manner as the Auditor General’s because, as it stands, it conflicts…The treatment in the rest of the Caribbean is not the same, it is different simply because it is the donor institutions that forced us to have this Financial Management and Accountability Act (FMAA), with which I have no difficulty. However, the Schedule of the Act, along with other things, which only make, for instance, officials liable to jailing, and not the Minister, for crimes of misuse of state resources…It is the addition of the constitutional offices to that Schedule which make this particular Act repugnant. Therefore, our intention here is to invite Members to support the motion and call for the Schedule to be amended.
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