Former Presidents (Benefits and Other Facilities) Bill 20123441 25 Jan, 2013
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Thank you very much. Mdm. Deputy Speaker, this has been quite a fiery debate and a lot of things have been said. I have listened; for example, to the Hon. Member, Mr. Nagamootoo, regale us elaborately about the importance of having dignity in the House and about behaving properly. He quoted in support of his contentions, the high philosophies of Ho Chi Minh and the principles of revolutionary morality. He admonishes us to stick very closely to those ideals and that we are championing the people’s interests and the people’s causes in this National Assembly. I agree with all of that, except, that at a minimum, when we purport to espouse those high ideals we must at least be honest in our assertions.
I will read when the Bill, the 2009 Law was passed in the National Assembly. My learned Friend and I sat on this side of the House, next to each other. He told us that it rattled his soul. Well I was sitting right there, I did not feel or hear any rattle. But more important, I have the record of how we voted; I have the Hansard of how we voted, because a division was called. You see when we speak and we catapult ourselves on pedestals, we must ensure that the records will support us. A division was called in the National Assembly and I have the votes. I will read the names of those who voted for. The list is as follows:
Dr. Rev. Gilbert
Mr. Parmanand Persaud
[Interruption] [Mr. Nagamootoo: I did not vote. You were there.] The paper is right here and the Hon. Clerk of the National Assembly can confirm that he issued the paper to me upon my request. The world will see that everything that Mr. Nagamootoo said there was in contravention with the position he took. All the rattling about the soul that we heard about was all political rhetoric. Today, he is unmasked and those people, who he misguided during the elections campaign, will see him for who he truly is. The document is here and it will be disseminated to the press tomorrow.
I also uplifted from the records of the Assembly what the People’s National Congress (PNC) said at the time on medical caps. We have heard a lot being said here about capping the medical facilities. Recall during that time the then leader of the opposition was medivac out of this country using public funds. It is relevant because capping a medical expense was an issue. [Interruption] My friend, Odinga Lumumba, the Hon. Member, in his debate had said that let us put a cap on the medical expenses. I will read what the Hon. Member, Lance Carberry stood up and said and I quote...
Mdm. Deputy Speaker: Hon. Minister, you are quoting from...
Mr. Nandlall: The Hansard.
Mdm. Deputy Speaker: Yes I know. Concerning...
Mr. Nandlall: Dated ...
Mdm. Deputy Speaker: No, bear with me. Is it concerning the 2009 Bill that is now being repealed?
Mr. Nandlall: That is correct, the debate in the House.
Mdm. Deputy Speaker: Yes, thank you. Proceed.
Mr. Nandlall: Date 30th April. Did you forget when you soul was rattled? At page 87, this is what the Hon. Lance Carberry said:
“No, none of the speakers that I heard talked about putting a cap on medical Bills, so where did he, Mr. Lumumba, get it from? If he wants to make a point, let him make that point, but he must be accurate. No speaker on this side said anything about putting a cap on medical Bills.”
We began this debate with the Hon. Minister of Finance adverting clearly to the fact that this debate is predicated and inspired only by political motives and political agenda. I have sighted two undisputed references to demonstrate beyond any doubt that this is a political gimmick we are seeing here.
What we have to be concerned about here is about passing laws that we can enforce, passing laws that meet the constitutional test of constitutionality. Ours is a system that the constitution declares itself to be the supreme law of the land and mandates that all law passes must enjoy consistency with that constitution less it be struck down, because if it is inconsistent, it is void to the extent of that inconsistency. We must also ensure that we pass laws that correct the mischief which we want to correct.
The mover of this Bill, when he began in the perambulatory remarks, said that this is a product of the elections campaign. The Hon. Member, Mr. Nagamootoo continued along that theme because they went right across the length and breadth of this country and they misled the people of this country in telling them that they will pass a law that will repeal the pensions enjoyed by former President Jagdeo. Pensions, was what they said, I heard it and many Guyanese heard it. You can retract now, if you want, but the Guyanese people will eventually be the judge, that you misled them and told them that you will pass a law that will repeal pensions. Today, we are hearing that the law is not about pensions, the law is about benefits. So again you find the Guyanese people being misled.
Secondly, the Guyanese people were led to believe and they put it as a campaign promise - the Opposition - that they would deny former President, Bharat Jagdeo specifically, that which he enjoyed under this Bill. Deny him specifically that which he enjoyed under this Bill. Well you have to go back and tell the people that you fooled them, because you cannot do what you promised to do. You cannot touch that which accrued to President Jagdeo by this legislation. So you have to go back and tell the people that you misled them again and I will articulate the reasons why I take that position.
Our Constitution recognises as a fundamental right, the right to own property. The Constitution says very clearly, that the person must not be denied their property without compensation that is adequate and commensurate with the value of that property that is being taken away. Property in the Constitution is undefined; property in the Constitution is described as property of any description.
I turn to a simple book written by S.Y. Mohamed, the title of it which reads, “Fundamental Rights and Freedoms of the Commonwealth Caribbean.” - former high court judge of Guyana for those who do not know and former ombudsman of the country. In treating with the question of property as contained in our Constitution and as defined and described in our Constitution, he says this:
“Property is not confined...”
At page 88 of the book:
“Property is not confined to ordinary movable and immovable, but to any interest in or right over any property of any description. It therefore includes money, choses and actions, rent charges, mortgages, easements, shares or anything that has an economic value.”
He cites a case in support of his proposition. The English case of Ashby vs. White, well known case to lawyers in this Parliament, where it was held that the right to vote was in the nature of a proprietary right and that a returning officer refusing, for improper motives, to allow an elector to cast his vote was liable in damages for wrongful denial of property; he also cites the case of Lilliman vs. The Commissioner of Inland Revenue, a Guyanese case from the 70’s. Where money was defined as property; he also cites the case of Bata Shoe Company vs. The Inland Revenue, where taxes was defined as property; he also cites the case from Trinidad, the Trinidad Island Wine Cane Farm Association vs. Sierra, where it was held that the imposition of assets without payment of compensation was deprivation of a constitutional right of cane farmers for the enjoyment of their property.
We have, known to us, the case of Temal where incremental increases granted to public servants and sugar workers, were retrospectively denied to them, after a court had ruled that they should get it. That law which denied those payments retrospectively was challenged in the court and the law was found to be unconstitutional.
Then I come to the Constitution itself, but before I go to the Constitution, I have with me also, Baird vs. The Attorney General. Baird was decided before our Constitution was amended in 2001 to include gratuity and pensions as fundamental rights. The Hon. Member, Dr. Roopnarine would know that we elevated those two entitlements, because they were vaguely in the Constitution, not as fundamental rights, but we elevated them after the Constitutional Reforms were made. This case was decided before that and in this case a policeman was denied his superannuation benefits. It was not then a fundamental right, but the judges at the Court of Appeal: Justice of Appeal Claudette Singh; Justice of Appeal Ian Chang; Justice of Appeal Nandram Kissoon unanimously held that superannuation benefits, though not a fundamental right as forming part of 138-152, they read it in as part of 142. They catapulted an ordinary superannuation benefit to property and they gave it the recognition of fundamental rights.
I move now to the Constitution itself. We have to read the Constitution together. Constitutions are not ordinary legislations as my friends on that side would know. It is a generic document that carries with it its own peculiar rules and cannons of interpretation. The cardinal and golden rule of construing constitution and constitutional provisions is that it must be done liberally and it must be done in favour of the citizens and not to deny the citizens an entitlement. Also, one must recognise the jurisprudential scheme which invigorates the Constitution and you interpret it from that perspective. Let me read what Article 222 speaks about:
“There shall be paid to the holders of the offices to which this article applies such salaries and such allowances as may be prescribed by or under any law or, in the case of the Clerk and Deputy Clerk of the National Assembly, as may be determined under 158(4).
(2) The salaries and allowance payable to the holders of the offices to which this article applies are hereby charged to the Consolidated Fund.”
Now this is the important part, sub paragraph (3):
“The salary and allowances payable to the holder of any office to which this article applies and his other terms of service shall not be altered to his disadvantage after his appointment, and, for the purposes of this paragraph, in so far as the terms of service of any person depend upon the option of that person, the terms for which he opts shall be taken to be more advantageous to him than any other terms for which he might have opted.”
This article applies to the President of the Republic. I pause here to say that this Bill does not and I will demonstrate it, it does not even apply to President Ramotar, because when President Ramotar assumed office, he assumed office when the 2009 Bill was enforced. Therefore, you cannot alter his terms and conditions and other terms of service after his appointment. So not only does it not affect former President Bharat Jagdeo or President Samuel Hinds, it does not also affect this current President and I will demonstrate that to you more clearly.
I move on to Article 149 of the Constitution. Article 149B says this:
“Every public sector worker shall enjoy an absolute and enforceable right to any pension or gratuity granted to him or her under the provision of any law or collective agreement of any kind whatsoever.”
As I said, we have to recognise the extent to which our Constitution goes in recognising all these facets of properties. Then I come to a definition of property now. In the Indian case of Rajasthan State Electricity Board, the Supreme Court of India said, in interpreting the word Property, as appearing in the constitution, said this:
“The concept property has to be liberally construed and any legal right which can be enforced through a court is a right in the manner of a property within Article 31.”
We are speaking about statutory entitlements here. The right to guards; the right to telephone allowances; the right to water allowances; the right to employees are statutory entitlements. In AG vs. Lawrence, in 1985 Law Reports of the Commonwealth 921, the court following the Indian jurisprudence, in interpreting the meaning of property, as appearing in Saint. Christopher and Nevis constitution held that:
“Property includes rights of management of a company.”
The court went on to hold that the word property appearing in the constitution should be given a wide and liberal meaning and include both concrete and abstracts rights of property. It is to be noted that the provisions of the Saint Christopher and Nevis constitution, in which the court was interpreting, is similar to Article 142 of the Guyana Constitution.
I have already dealt with Baird. In Brent Griffith vs. The Guyana Revenue Authority, again, that case went to the Caribbean Court of Justice (CCJ) and superannuation benefits was held to be a fundamental right under the Constitution.
The Former President Benefits and other Facilities Acts of 2009, section 2 gives unto a person who has held the office of President of the Republic and has ceased to hold such office, payment – money, property – in respect of expenses incurred in the provision and use of water, electricity and telephone services at the place of residence in Guyana. Services of personal household staff, including an attendant and a gardener, they have to be paid by money – property. Services of clerical and technical staff, if requested, they have to be paid by money – property. Free medical attendants and medical treatment or reimbursement, again, money. Fulltime personal security and services of presidential guard, services at place of residence, they have to be funded by money – property. The provision of motor vehicles, motor vehicles are not purchased by peppercorns, they are purchased with money – property. Toll free transportation in Guyana, you have to pay or else toll free it is money – property. An annual allowance equivalent to two first class tickets, it has to be purchased with money. Tax exemption, if tax is property, logically tax exemption must be a proprietary right. Tax exemption, status identical to that enjoyed by a service President, again, property – money.
The point I am making, I am not going to be pulled into those kinds of foolish arguments. I am talking what the Law says and we have a duty to ensure that we pass Laws that does not make us a mockery in the Caribbean. I am saying and I have given all the examples, all the matters that I have referred to in that Bill are quantifiable in monetary terms. Therefore, they are protected by Article 142 of the Constitution of Guyana.
The issue raised is whether those rights conferred on former Presidents can be classified as property. According to the aforementioned, property is defined in the Constitution; it should not be given a limited interpretation, but a generous and liberal interpretation. This has been the trend across the Commonwealth; if we want we can depart from it here. The Government is not going to be part of it.
The court in AG vs. Lawrence, right in St. Kitts and Nevis, applied that broad interpretation. Lilliman and the Inland Revenue Commission (IRC) of Guyana said that property is money. Article 142(1) is wide enough to cover all property rights conferred on former Presidents under this Bill. Therefore, to deny a former President or any person any of those allowances, in this way, is violative of the Constitution, completely violative of the Constitution.
The other point that I want to make and this is the one that reinforces why it cannot apply to former President Jagdeo; President Jagdeo demitted office after the 2011 elections results were declared, that was when his tenure came to an end. He left office being entitled to these things; he being entitled to all the benefits he got in the 2009 legislation. Upon the day or the minute that he left office, it became his vested rights and you cannot take away people’s vested rights, unless you satisfy the Constitutional requirements. You have to amend the entrenched provisions in the Constitution before you can go against property.
My friends this is not about President Jagdeo or the attempt to take away his entitlements, this is about property of every single Guyanese. If we start at the Presidency, where will we stop as a country and as a people and that is what our people must understand. It is about concepts; it is about legal protection that our people, our forbearers can give us protection in the form of a Constitution and made it the supreme law of the land and we cannot wither away the importance and the sacrosanct nature of this document, we cannot do that.
The other point is President Jagdeo left office with the expectation, a statutory expectation, a legitimate statutory expectation, a legitimate expectation grounded in statue ossified in statue, deeply rooted in statue. How are you going to deny him that expectation lawfully? How are you going to do that? This Bill speaks to repealing clause 5, Former President Act, is hereby repealed. If you repeal it now how does it apply to former President Jagdeo; how does it apply to former President Samuel Hinds? You are repealing it as of from today, if it is assented to today, it becomes the law today; it does not go back to Bharat Jagdeo. It cannot go back to Bharat Jagdeo.
[Mr. Speaker assumed the Chair]
Let me speak to retrospectivity too. Legislative drafting by the foremost authority on legislative drafting – G. C. Thornton, Order of the British Empire, Queen’s Council, M.A. LLB, Barrister and Solicitor of the Supreme Court of New Zealand, Solicitor General of Hong Kong, former Chief Parliamentary Draftsman of Tanzania and this is what this Honourable, noble and learned gentleman has said, at page 110 of his book – “Retrospective Laws”... [Interruption] Why do you not listen and learn? I will pause until I get quite on this side, Sir, because I want to teach. It was my predecessor who would have said, “Those who became belatedly matriculated”, but I would not be that offensive. Let us go back to page 110:
“Retrospective laws offend against general principle that legislation intended to regulate human conduct ought to deal with future Acts and ought not to change the character of passed transactions carried on upon the faith of the then existing law. The presumption against retrospection is not a technicality; it is a general rule of justice, not dependent on forms of words. It is founded on a judicial preference, where choice is possible for the reading which does not invalidate existing rights and obligations.”
How can you go back and take that which is already vested in former President Jagdeo?
When you go back to the electorate you have to tell them, “Oh, Lord! I made a mistake. I cannot touch Jagdeo's benefits”. We cannot touch it. “We made a mistake and we apologise for it.” There is nothing wrong with that; apology cleanses the soul so there is nothing wrong with going back and telling them that you made a mistake about the pensions in the first place that you amended the benefits and when you realised that it was the benefits then you realised that you cannot even touch the benefits. I do not know how they are going to treat with you but that is what you have to go back and tell them. Why do you think that the Chief Justice suspended this man out of the court when he went to challenge the constitutionality of it? It was not that it was not visited by the courts.
Mr. Nandlall: He was ungraciously asked to leave the court. The case was dismissed without argument; point in limine, case bad in law, completely bad in law. Costs were awarded. We have established that it does not apply to Former President Jagdeo. We have established that it does not apply to Former President Samuel Hinds and, as 223 says, it also cannot apply to President Ramotar because as Article 223 says that his terms and conditions upon which he took office of which his benefits and allowances when he leaves office would be part of those conditions because they are part of the laws of the country cannot be altered after his appointment because the Constitution will mandate a liberal interpretation of the provisions. You went to court already and you were ungraciously asked to leave; that is the point I am making.
As we are on what we are going to tell the people, what would Mr. Nagamootoo tell the people when the record will be published in all of the papers tomorrow that he supported this Bill and his soul rattled so silently that I did not hear it although I was right next to him? I do not know what he will tell the people. You will have to live with your conscience.
Mr. Speaker, the Bill has also some other flaws. The Bill denies a Former President the right to work because the Bill says that once you have employment and you are being paid from that employment you are denied your statutory entitlement. That is something that I have never heard of; completely unheard of.
Mr. Speaker: There are a few constitutional offices in Guyana that prohibit other...
Mr. Nandlall: The presidency is not one of them, Sir.
Mr. Speaker: GECOM's Chairman I think is one.
Mr. Nandlall: Yes, I agree. While you hold that office...
Mr. Speaker: Oh, while you hold the office!
Mr. Nandlall: Yes, of course. The PUC is one but here is where you have left office. You are given some statutory entitlements ex post facto your leaving office but if you go sell coconuts on the road you lose your statutory benefits; any form of remuneration. This almost borders on lunacy. I am fortified in my view by a constitutional provision. We have Article 149 A of the Constitution as a fundamental right - and Brother Roopnarine put it in and it is a good thing that he put it in. It says this, he did not speak about it when he spoke but this is what he put in:
"No person shall be hindered in the enjoyment of his or her right to work"
That is to say: the right to free choice of employment. You have a hindrance here; if you work you lose your statutory benefits. This will be construed as an afront to Article 149. [Mrs. Backer: Go to the court.] I do not have to go to the court. It is not I that is putting it through, it is my friend. He will deal with it. My duty is to point out to the public and the people and His Honour, the Speaker, where the Parliament is falling into error.
There is another constitutional right that is violated. The Bill says that if the Former President is charged with an offence, both in and out of Guyana... Not convicted, charged. I agree with my friend the Hon. Minister that obvious care and circumspection requisite to bring such an important Bill was not attendant to this Bill. Clearly, I do not believe that Mrs. Backer read it. I do not believe that my friend, Mr. Williams, read it because Mr. Williams would have known that Article 144 of the Constitution guarantees to every person this right:
"It shall be the duty of a court to ascertain the truth in every case that every person who is charged with a criminal offence and shall be presumed to be innocent until he is proved or has pleaded guilty."
The Constitution accords to every single Guyanese a right of presumption of innocents when they are charged with a criminal offense. The prosecution must prove their guilt. Here this Parliament is imposing a penalty before there is any establishment of culpability by the judiciary. This is vulgar. It is a vulgar abuse of the constitutional right.
Then of course we were speaking about the equality, the distinction that it draws and the discrimination that it permeates between child born in wedlock and child born outside of wedlock. We have passed a series of legislations in this House. Credit must begin with the PNC. In 1983 they passed the Removal of Discrimination Act. Then we passed the Children Born Out of Wedlock Act. Then, after the constitutional reform process, we took it to a higher level and we included it in our Constitution as a fundamental right. When I was reading just now my friend Mr. Williams was unfamiliar with it, Article 149 (e):
“All persons whether born in or out of wedlock and whether born prior to the enactment of this article or not are born equal, have equal status and are entitled to equal rights.”
Why, in this legislation, in the year 2013 would Parliament discriminate or my friend, the Hon. Member, want to discriminate between a child born in wedlock and a child born out of wedlock? Is it the agenda, the persecution complex, the persecution agenda, the persecution intention that overwhelms the promulgation of this Bill, was so overwhelming that reason lost its seat and we are just passing law for the purpose of getting at people? I have no doubt that granting $5,000 per month for telephone, water and electricity together would amount to a denial of a right; that is a denial of a right. That is not the conferment of a right. That is a denial of a right that existed before.
If we were genuine about our concerns about capping then one would have expected at least even an indecipherable utterance about the Leader of the Opposition’s Benefits and Other Facilities Act which was passed in this House. Not a single word, not even analogously, not even in contradistinction was reference made to a similar piece of legislation. Let us read what the Leader of the Opposition is entitled to and let us read how uncapped these benefits are:
1. A rent-free furnished office accommodation.
Hence it can include $10 million. It can include $100 million; no cap. We are talking about principle. Is that not what you are talking about, principle? Let us continue:
2. Medical attention including medical treatment or reimbursement of medical expenses incurred by him for himself and dependent members of his family.
There are no caps, no ‘overseas’. There is nothing about whether it has to be sought in Guyana or elsewhere. There is no distinction between children born out of wedlock or adopted children; nothing like that or natural children. There is nothing like that. I continue:
3. Fulltime security service at his official place of residence and Office of the Leader of the Opposition to be provided by the Guyana Police Force.
There is no cap. The next one:
4. Services of a research assistant, an executive assistant, a secretary, a clerical office, a chauffeur, a personal security officer, a gardener and two domestic servants.
There are no caps.
Mrs. Backer: Mr. Speaker, on a Point of Order and for my edification could the Hon. Member – it slipped me because of the noise over there – tell us the name of the act that he is reading?
Mr. Nandlall: They are even more uninformed than I thought. It is the Act No. 6…
Mr. Speaker: Hon. Members, the first thing is it not a Point of Order. Secondly, let us allow the debate to flow. It is not a Point of Order so there is nothing to clarify
Mr. Nandlall: For the record it is – genuinely they are seeing this for the first time and that is hilarity – Act No. 6/2010, Leader of the Opposition Benefits and Other Facilities Act, 2010. We are speaking about the principle of being uncapped. That is the principle, of being uncapped.
I am sure that I have convinced this House that this Bill here has nothing to do with saving taxpayer’s dollars and all of these high philanthropically principles that we have heard about. The fact is that the President of a country, the Executive President of Guyana, is no ordinary office holder. He is entitled to a regime of benefits that are recognised where Heads of State exist in all parts of the civilised world. It is a job that is 24 hours per day. While we sleep at night those people have to be up and ultimately they are answerable for everything that goes wrong in this country and after doing ten years of hard work they are entitled to a package that justifies their dignity which establishes their status as a Former President of the country.
These arguments about rice farmers and sugar workers are arguments to appeal to the political hustings. They are not arguments that will attract any form of intelligent disputation. They are political propaganda and any intelligent grouping of people will recognise them as that. We must not dilute matters of national importance and ridicule them into political footballs and political… I do not want to say the other word.
The point is that we are dealing with an office of President – the highest office holder of the land, a former Commander in Chief of the Armed Forces, a person who is entitled to protection, a person who is entitled, at a minimum to a standard of life that is commensurate with the high office he has held. Therefore the government has no hesitation, whatsoever, in withholding support for this legislation. Thank you. [Applause]
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