The Fiscal Management and Accountability Act
4975 27 Jun, 2012
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Sir, I rise to make my contribution to this motion which is before the House. I have listened very carefully to the sentiments expressed by the other side; I listened carefully to my friend, Mr. Khemraj Ramjattan, and I listened to the mover of the motion and I get the distinct impression that the motion is predicated on a commendable philosophy, and that is that we should increase oversight of Government and public funds. That is a concept to which this Administration is absolutely committed. I would venture to say that if an examination is done now of our financial infrastructure and our accountability mechanisms, Guyana now in 2012 will be the best it has ever been in the history of independent Guyana.
All the legislation that they are referring to, the Fiscal Management and Accountability Act, was passed by this Administration. The Amendments in the Constitution which deal with financial provisions were done under this Administration. The Auditor General’s Office was restored to integrity under this Administration. It was invested with functional autonomy and given constitutional security under this Administration. My friend Mr. Ramjattan can stand up today and cite to us an Auditor General’s report. When the mover of the motion was the Minister of Finance, no other Parliamentarian had that luxury. We never knew where the financial records of this country were. We did not know about an Auditor General’s report and that is the truth. We must recognise that and we must approach this motion from that perspective. While we have established all these mechanisms, we have to ensure that in our jealous and zealous endeavours to entrench our scrutiny over public spending and government financing, we do not abrogate the very laws, regulations and mechanisms we have established to scrutinise government spending and public moneys. And that is what this motion does.
It should concern Your Honour because this motion, as I will endeavour to demonstrate and illustrate, violates not only the constitutional provisions, but also the letter and spirit of several sections of this legislation. And ultimately, sir, a majority will prevail, in terms of votes but Your Honour is presiding and the record will reflect that Your Honour may be presiding over motions that are not only violative of parliamentary norms and practices...
Mr. Speaker: Hon. Attorney General, would you like to invest me with certain powers? I do not have the power. I can regulate the debate, but I do not have the power you are trying to put into my hands here. I note what you are saying.
Mr. Nandlall: I have observed, Sir, reported in the Newspaper, Friday’s edition, that Your Honour made a statement that the Parliament has quasi judicial powers, and in exercise of those powers, you have certain residual responsibilities. But we will get to that later.
We bandy about several terminologies in this debate and the motion is punctuated with them. They are terms of heart. They are all defined in this legislation. Let us take, for example, Consolidated Fund. That is defined in the Constitution itself. Let us read what it says because listening to my friend, Mr. Ramjattan, who is much more senior than me at the bar, I get the distinct impression that either he did not read it or by some unfortunate aberration, he did not understand what he read.
Article 217, the marginal note reads, “Establishment of Consolidated Fund”. It says this:
“All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other Fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority)...
The balance that is left back...
“...shall be paid into one Consolidated Fund.”
It is not all public moneys that must be paid into the Consolidated Fund. The Constitution...and he will not listen. [Mr. Ramjattan: You are making my point.]
Mr. Speaker: Mr. Ramjattan said that you are making his point now.
Mr. Nandlall: I do not know what point he made, but he did not make this point. He did not cite this document. This section says very clearly that all moneys are not to go into the Consolidated Fund. If we are in doubt or there is some degree of ambivalence in respect of what that provision says, the Fiscal Management and Accountability Act render us with a number of definitions.
It says this:
“The Consolidated Fund means the aggregate of all public monies that are on deposit at the credit of the State”.
Then, it defines extra budgetary funds which is the subject of this debate, “Extra budgetary funds means funds established by an Act…” such as the Lottery Act, the GGMC and all the other statutory agencies, “…for a specific purpose and funded by specific earmarked revenue that operates apart from the Consolidated Fund…” – So, it cannot form part of the Consolidated Fund. The legislation says that it must operate apart from the Consolidated Fund – “with the result that transactions of the fund are not included in the annual budget.” It is not to be included in the annual budget.
I have examined this legislation. This legislation is not unique Guyana. It is a model legislation that is extent throughout the Caribbean. Jamaica, Barbados and Trinidad have one, and all these countries, the Organisation of Eastern Caribbean States (OECS) countries, they all have extra budgetary agencies and they all have Consolidated Funds.
Mr. Speaker: …Financial Management and Accountability Act.
Mr. Nandlall: Yes Sir, very similar.
Mr. Speaker: The previous speaker said that this really only came about because of mal administration. I am just trying to figure out…
Mr. Nandlall: They all came about because of a need to strengthen financial accountability, which is why we brought it in 2003. The Act continues to explain. Section 37 defines what public funds are and section 38 speaks again about the Consolidated Funds. It says, “All public moneys raised or received by the Government shall be credited fully and promptly to the Consolidated Fund except monies credited to an extra budgetary fund as stipulated in the enabling legislation establishing the fund”, such as the GGMC and the Lottery Act and the Forestry Commission Act. Sub section (b) says, “Monies credited to a deposit fund” and (c) says, “...as stipulated in the Constitution”.
The clear intention of this Act and the clear prescription of the Constitution is to keep extra budgetary funds separate and apart from the Consolidated Fund. That is a common feature in the financial architecture of every modern country in the world. There is need for Governments to have financial flexibility and they cannot put all their eggs in one basket. I agree that all these extra budgetary agencies must be audited by the Auditor General and reports must be prepared at required intervals. We, as far as I am aware, are complying with that, and the reports are laid in the National Assembly. If you pick up the Auditor General’s report, there are comments based upon the examination the Auditor General would have done on those very accounts.
Mr. Ramjattan has the Auditor General’s report on his desk, which is why he can speak about the NFU; it was audited by the Auditor General. How can you say that these things are being done undercover and in subterfuge and in camouflage? It is wrong to deposit extra budgetary funds in wholesale manner into the Consolidated Fund. It is illegal and it is unconstitutional.
I humbly and most respectfully wish to persuade that this motion which your honour is presiding over...
Mr. Speaker: I think you need to persuade the mover of the motion. Your argument is a compelling one, but you should persuade the mover.
Mr. Nandlall: We are falling into error. In days to come when the Hansard is examined, they will see the Attorney General’s speech and they will look to see who the presiding Speaker of the day was who allowed this to pass. The name Hon. Raphael G. C. Trotman will be there, Sir. I am stating my case. I will be absolved by the records of this Assembly. I ask your honour to do the same.
We have to be careful. The one seat majority is a great thing for those who enjoy it. All I am asking is to make constructive use of it. Do not violate the laws of the country. I can understand the enthusiasm, but let us punctuate it and exercise it with reason; that has been my call all the time. I respect the majority, but all I am asking is for us to trip the exercise of power. [Interruption] That is precisely why I went to court because the one seat majority is not used rationally, but is used emotively and emotionally. That is the problem.
I respect the majority, I have no choice, but at the end of the day, fortunately or unfortunately, I remain the principal legal advisor to the State of Guyana. Uneasy lies the head that wears the crown. Therefore, it is my responsibility to advise all constitutional office holders and constitutional creations to obey the constitution and the laws of this country. Tonight I ask the National Assembly to do so. They can reject my advice with the one seat majority, but that does not mean that you are right.
I wish to go to the motion now and to deal with the several clauses. The firs clause says, “WHEREAS the Financial Management and Accountability Act 2003 require all revenues accruing to the State to be deposited in the Consolidated Fund.” This is not what the Act says. This is an inaccurate reflection of the statute. This is legally wrong and factually incorrect, the very beginning of the motion. Not only is the conception of the motion misconceived, line by line it is inaccurate.
We then go to the second WHEREAS clause, that is okay, because all it does is to recite what section 39(1) says. My friend and Hon. Member Mr. Nadir alluded to that.
The heresy continues hereafter. The entire remainder of this page, the entire page, is completely wrong, it’s vagueness aside. For example, “AND WHEREAS some entities authorised to establish such Funds have failed to meet their obligations under section 39...” This is calling upon the Minister to do certain things. Which entities? How can the Minister comply when you are saying certain entities? What prevented you from naming the entities? Any persons who would have been diligent in the preparation of a motion of this type that is calling upon and expects the National Assembly to support it, and calls upon the executive Government, through its Minister of Finance, to bring all these things to the Parliament, we do not know what to bring. Which entities are he speaking about? In his presentation he said that he does not know the entities himself. He said so in his presentation. He said he does not know which the entities are, the Hon. Member, distinguished former Minister of Finance.
There is that deficiency. It continues to speak about these same entities and you want certain things to be done about these entities. But, if we do not know what the entities are, how are we going to comply with the requests which are enumerated thereafter? We cannot. We simply do not know how to comply with them, because we do not know who they are and what they are. [Mr. Nagamootoo: The Lotto fund, start with one.] I will deal with the Lotto fund specifically Mr. Nagamootoo. I am not going to deal with NICIL and its legal advisors and so tonight; I will deal with the lotto fund.
I am dealing with the last clause on this page, “AND NOTWITHSTANDING: The regular reports by the Auditor General and the Audit Office of the failure of many such entities to meet their legal obligations the Minister of Finance has routinely failed to enforce the law in these cases…” Which law? The Minister of Finance does not enforce the laws of this country. What are we doing? We have an enforcement agency; it is the Guyana Police Force. I do not know which power the Minister of Finance has to enforce the laws of Guyana. Here it is that this motion is calling upon the Minister of Finance to perform the function of enforcement of laws. These are powers which are not reposed in the Minister of Finance. [Mr. Ramjattan: He is accountable.] There is a difference from saying that he is accountable and saying that he is responsible for seeing that these things are done. It is something that is quite different from asking him to enforce the laws in relation to such breaches. You are a layer, you must appreciate these differences.
Then, the Hon. Member in this motion want the relevant investment plans and programmes and expenditure contained in the annual budget and also the processing of the resources allocated from all extra budgetary funds. We know that every year the Minister of Finance presents the annual expenditure and estimates of all agencies that fall under the executive control and administration. What is it that he wants, a separate programme and financial plan prepared for every agency? That is the reason why there is an annual exercise authorised by the Constitution in the form of Article 216 that allows the Minister of Finance to present to Guyana the nation’s plan for the ensuing year, including all these agencies. That is why we sit so many hours and days in the Committee of Supply to approve their spending item by item for every one of them. There is absolutely no need whatsoever for this motion asking for this relief, if I can phrase it that way. [Mr. Ramjattan: Kerfluffling] You can say what you want. If my friend cannot recall what the budget exercise was about, that is not my fault. He has been in this Parliament long enough, longer than me. He must have an appreciation of what goes on at budget time.
Then there is another clause, “BE IT RESOLVED: That this House requires the Minister of Finance to lay before it a report on all the extra-budgetary agencies…” he does not know what they are. [Mr. Ramjattan: You do not know what they are either.] The Minister knows that they are, “…including the Lotto Funds and GGMC, all the outstanding reports and quarterly audited accounts as required by the law.” Sir, I will concede. Wherever the law requires reports to be presented to this Assembly, they must be done. I am not here to advocate a position where there must be violation of those legal requirements. As far as I am aware and as far as possible, they have been presented in this National Assembly. There may be delays in instances, but every effort is made to present them in a current manner. No one can dispute there is any backlog of audited accounts for any of these agencies.
Then, we come to the final BE IT RESOLVED clause which requires these monies to be paid in the Consolidated Fund. They cannot be paid. The balance cannot be paid into the Consolidated Fund. Take for example the Lotto Fund. The Government has been operating under a legal opinion. I have examined the legal opinion myself and I say that I concur with it. If the Auditor General feels that he needs another legal opinion, he is an independent office holder; he can go and get another one. If he believes that he needs and interpretation from the Court he is free to do so, he is a constitutional office holder with a personality of his own; let him go and get that. The Government is going to be guided by the Government’s legal opinion until a Court otherwise pronounces. All the lawyers who are seated on that side and who may have a dissenting view have access to the Courts. Go to the Courts and seek guidance. I hear that the matter is in the Court. So far as and until and unless we are reversed we remain of the firm and considered view that this legal opinion is correct. [Mr. B. Williams: The opinion is not law, Mr. Nandlall.] I am not saying the opinion is law. I am saying that the opinion guides us and interprets the law for us and we are satisfied with the accuracy of this interpretation of the law. That is all we on the Government side are saying.
There is a Lottery Act which establishes a fund. The Constitution and the Fiscal Management and Accountability Act authorises monies generated by the lotteries of Guyana to be deposited in that fund. The Constitution allows it and this legislation allows it. That is all we have been doing. That fund is audited annually by the Auditor General and the reports are laid before this National Assembly. It is included in the Auditor General’s report which is examined annually by the Public Accounts Committee. Which law have we violated? If the Auditor General feels that we are in breach of the law then there is a course for him to seek redress. [Mrs. Lawrence: Where?] The Parliament is one, but if he feels that the laws of the country are being violated then let him go to the courts.
The motion which is before us is not only in collision with the Constitution...
Mr. Speaker: Hon. Attorney General you have two minutes before your time expires. I do not know if the one seat majority will give you an extension.
Mr. Nandlall: It is not only in violation of the provisions of the Fiscal Management and Accountability Act, it is misconceived, it is wrong and it has no effect, none at all. It has no effect at all. There is a view that motions constitute some coercive impact upon government policy. I wish Sir to take this opportunity to reject that notion. I have here a quote from the book Practical Guide for Private Members Business, Ninth Edition, it says:
“A Motion expressing a resolution is only the House stating an opinion. The Government will not be bound to adopt a specific policy or course of action as a result thereof.”
[Mrs. Ally: Are you threatening the Parliament?] I am not threatening the parliament; I am just putting in perspective the efficacy or lack thereof of a motion. Thank you very much, Sir.
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