May 07, 2013 - The Fiscal Management And Accountability (Amendment) Bill 20132888 07 May, 2013
May 07, 2013 - THE FISCAL MANAGEMENT AND ACCOUNTABILITY (AMENDMENT) BILL 2013
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: I know, Sir. I rise to speak on the Bill which is before this House and this Bill while it largely seeks to address the question of accountability and transparency has far deeper implications than that and therefore it is incumbent upon me to chronicle and elucidate the reasons and the basis for the position that the Government will take on this Bill.
It is perhaps germane at this juncture for me to reflect upon the conduct of this National Assembly over the last year or so. It is now far beyond the pale of any dispute that the 10th Parliament of Guyana has been our most unique and challenging Parliament of all. The extraordinariness of this Parliament manifested itself in many facets. “The new dispensation” is one adjectival description, but I was going to speak about the manifestation of it. We have –obviously the most important one – the composition, the frequency of its sittings, the number of questions which are asked from both sides of the House, the number of motions and Bills which emanate, especially from the Opposition benches, just to name a few. I have examined all of these materials and a clear distillation of all that has transpired in the 10th Parliament, stripped of their esoteric and political content leads to the ineluctable conclusion that there has been a constant and relentless attempt driving by the majority in the National Assembly to expand the role, the scope, the operations, the jurisdiction, the sphere of influence and indeed the power and the functional responsibility of the legislature way beyond its constitutional and legal parameters.
Motions and Bills have been the main vehicles utilised to achieve this illusive and elusory objective. My honourable colleague, Dr. Ashni Singh, in his budget presentation termed it a veritable plethora of instances. This Bill presents yet another of those instances about which I speak. Before I get to the amendments themselves it is important that I dwell a little on the substantive Bill because the substantive Bill is an extremely important piece of legislation for our financial architecture. The principle act repeals the 1962 Financial and Audit Act and it is the only comprehensive piece of legislation on our statue books which regulates how agencies funded by public moneys are to be fiscally regulated to achieve the hallowed objectives of accountability and transparency in respect of the expenditures, income, deposit and custody, investment, management and auditing of public funds. All are important concepts that this Parliament would want, I am sure, to preserve. This principle act is not unique to Guyana. Its counterpart exists throughout the English speaking Caribbean. In fact with the few that I have compared it, our act stands out as far more comprehensive than those which exist in our neighbouring territories.
The long title of the act reads as follows:
“An act to provide for the regulation of the preparation and execution of the annual budget, the receipt, disbursement and control of public moneys, the accounting for public moneys and such other matters connected with, incidental to, the transparent and efficient management of the finances of Guyana.”
This is an extremely important piece of legislation which regulates all that we have heard from Mr. Ramjattan, for example just now, about the things that we have to safeguard.
This Principal Act relates to certain agencies which the Act, itself, terms budget agencies and it essentially regulates how these agencies are to be funded and how they are to account for the moneys which fund them. Significantly, those agencies are listed in the schedule of the Act. The Act applies to those agencies. I do not know of any agency outside of this schedule to which this Act has any application. In fact, from reading the Principal Act, from one end to the other, I get the distinct impression that this Act is only applicable to the agencies that are listed in the schedule of the Act.
Mr. Greenidge, in previous amendments, to which, for example, one the House passed in 2012, Bill No.24/2012, sought to remove from the schedule of the Principal Act a number of agencies which the Hon. Member styled constitutional agencies. The effect of this, if this is to be assented to, is that those agencies will come out of the purview and operational scope of the Principal Act. That is a fundamental point to note.
When one examines the Bill that is before the House, this Bill seeks to amend this Principal Act and it has no connection to this Act because it seeks to apply to a set of agencies that Mr. Greenidge has removed from the operation of the Principal Act. Therefore this Bill has absolutely no nexus; it is wholly irrelevant to the Principal Act. The only way that this Principal Act has any relevance to any agency is if the agencies are listed in the schedule. Mr. Greenidge has removed the agencies from the schedule and therefore he has removed them from the operational scope of the Principal Act. That is why this House should not even be considering this Bill. This Bill, I submit, is an abuse of the process of this Parliament.
Let us look at what it does. It seeks to inject, in this Principal Act, several provisions but the provisions of this Principal Act can only be applied to the schedule. In this Bill a whole host of provisions is added to the Principal Act, but to what will they apply. There are certainly not going to apply to the set of agencies that have been removed. [Mr. Greenidge: How was the Audit Office...[inaudible]]. The Audit Office, Mr. Greenidge, has an Audit Act that regulates it. Months ago I said, with the greatest of respect to Mr. Greenidge, and I am going to repeat again, with the same respect, that he is dealing with matters that are way beyond his scope. I say so, Sir, with the deepest of regret. How else can one explain this travesty? How can one explain that a Bill is being passed to amend an Act and the Bill has no applicability to the Act? The objective that the Bill seeks to achieve and the agencies that it seeks to apply to have been removed, by the very mover of the Bill, from the operation of the Act. The Bill, therefore, is predicated upon a complete misconception and is palpably wrong. There is no question about that, I humbly submit, but that is only the tip of the iceberg. I am assuming, giving all of the benefit of the doubt, as remote as the possibility is, that there is an assumed nexus, I am going to deal with what is before us, as irrelevant as it is.
Let us deal first with clause 3. It reads:
‘The Principal Act is hereby amended as follows –
(a) by the insertion of the following heading after section 80 in Part XII “Constitutional Agencies”’
I pause here to divert Your Honour’s attention to the marginal note. The Bill, clause 3, seeks to amend section 80 and at the side of it the marginal note reads, “Amendment of Part XII and insertion of section 85(A) of the Principal Act.”
Clause 3 seeks to amend section 80 of the Principal Act, but the marginal note, to that very clause, states that it seeks to amend section 85(A). That is another error, but that is not the only one. [Mrs. Backer: That is a typo.] I am told that it is a typo. [Mrs. Backer: Who told you that?] I am told by the Hon. Deputy Speaker that it is a typo.
Deputy Speaker [Mrs. Backer]: As people are getting up in a whimsical way, I may as well join. I am saying this because it is of no moment, but I have had no discussion with the Hon. Minister Mr. Anil Nandlall, particularly since his name change.
Mr. Nandlall: Mr. Speaker, I take it that you are not deaf and you heard what the Hon. Member said, that it is a typo, so I will not detain the House.
It is said in clause 3 (b) that section 80 shall apply to constitutional agencies. Let us look at what section 80 states. That is all the amendment says and I would be grateful if you can read with me, Sir, because it is kind of tedious. It is so badly done that one has to follow.
Clause 3(b) reads:
“(b) Section 80 shall apply to Constitutional Agencies except as otherwise provided by the law establishing the Agency.”
Let us see what section 80 states in the Principal Act.
“A statutory body shall, as soon as is practicable and in all events not later than four months ...”
Section 80 speaks specifically to statutory bodies. It is a trite principle of drafting that one simply cannot say that one section, which deals with a particular type of agency, can, in a wholesale manner, apply to another set of agencies without employing some kind of language, to say, for example, that it applies mutatis mutandis. Section 80 only applies to statutory bodies and an amendment cannot extend it without more to apply to a constitutional agency. It has to say, “Where the term statutory body exists in section 80 it shall be replaced by the term constitutional agencies mutatis mutandis.” Sir, that is another incomprehensible part of the legislation but it does not end there, it continues. [Mr. B. Williams: Give the man the CPC.] No, if it is... Mr. Speaker, this is the laws of the country and I am very happy that the official from the United Nations Development Programme (UNDP) is here because...
Mr. Speaker: Will you be having a meeting with them, Attorney General, at any time?
Mr. Nandlall: Yes Sir.
Mr. Speaker: You can raise those matters when you meet with them.
Mr. Nandlall: Yes. I certainly will. I said that simply because I hear an utterance from the other side, to say, “so what, we do not have a draftsman”, but I do not know that that can be an excuse to present mediocrity to the House as proposed laws of the land. It cannot be. [Interruption from the Hon. Member Mr. B. Williams.]
Sir, I am being disturbed by the Member directly opposite me.
May I proceed?
Mr. Speaker: I did not stop you.
Mr. Nandlall: But I am being stopped, Sir.
Mr. Speaker: Go ahead.
Mr. Nandlall: Clause 80B reads as follows:
“The Public Officer responsible for managing the affairs of an Agency or such other person designated by an appropriate authority for the purpose, shall submit budget proposals to the Clerk of the National Assembly (copied to the Speaker of the National Assembly and the Minister of Finance)...”
This budget proposal comes from, the officer to the Clerk and a copy is sent to the Minister of Finance and to Your Honour. The Clerk shall then ensure that those proposals are submitted as presented. It is submitted to whom and submitted where? It does not say. Does the Clerk...? Perhaps it is to Freedom House. I hear the Deputy Speaker said, again, Freedom House. Where is it that we should submit it? [Mrs. Backer: Freedom House, I am now saying it.] I am told again that it is to Freedom House, Congress Place, if it is the wish, but there is nowhere in this Bill that it states to whom or where is the Clerk required to submit this information which he receives from this public officer.
It continues. In the case of the Audit Office, the budget shall be submitted to the Parliament through the Chairman of the Public Accounts Committee. Now there is one set going to the Clerk, and the Clerk does not know to whom he must submit it to. Then there is the Audit Office budget being submitted to the Parliament.
As Attorney General, I have to point out that Parliament consists of the National Assembly and the President, so who will it be submitting to? The Parliament is not the National Assembly. If my friend had said that it must be submitted to the National Assembly, I could have understood. It must have gone to the Clerk, I have to presume, because it is silent, but it states that the budget must be submitted to the Parliament through the Chairman of the Public Accounts Committee. This is the height of... [Ms. Manickchand: Clumsiness.] I think that is unparliamentary. I know it is unparliamentary. I know that the Leader of the Opposition has chronicled a detail set of adjectives that I normally use in my public discourses about the National Assembly. To the distinguished Member, I am running out of adjectives. Seriously, this is the height of mediocrity. It is a travesty that we are doing this in the presence of a UNDP official.
Section 80B (2) goes on to say:
“The Finance Minister shall submit to the Assembly the Minister’s comments on the Annual Budget of a Constitutional Agency, including recommendations in sufficient time to enable consideration by the Assembly and those recommendations shall be limited to the overall request rather than line items.
When is the Minister going to do this? Is it before the annual budget presentation? When is the Minister of Finance required to submit his recommendations? The travesty does not end there; it goes on.
Section 80B (3) states:
“The submission shall be made in accordance to section 79 (1) and prior to the commencement of the fiscal or calendar year, as the case may be, for the approval of the National Assembly.”
Section 79 speaks about the presentation of the national Estimates. It would appear, as my Hon. Colleague, Bishop Edghill said, we are going to have a grand display here of a tripartite budget presentation after my distinguished colleague would have done his four and a half hour marathon. We would have to then take in the break, I suppose, because next in line is Mr. Carl Greenidge. He has his budget to present. Well, I do not know, because the Bill does not state if Mr. Greenidge will present before the Clerk, so we may have to toss a coin for who will present before whom. The Bill is silent on those matters. The Standing Orders are also silent. Mr. Speaker, we will have to depend on your grace and your sagacity.
Mr. Speaker: I would ask to be kept out of that.
Mr. Nandlall: If I were in your position, Sir, I would have done the same. When will we spin the toss and it will determine who will speak, after Dr. Singh would have done his presentation, we have to wait on one from Mr. Greenidge, he will present the Auditor General’s budget, I suppose. He will have a budget speech with his set of estimates that will come, because that is how we know budgets are presented. Then we have the distinguished Clerk of the National Assembly who will rise - I do not know from which angle, or whether he will stand right there, or whether he will come here - and he has to also read a speech. He will have a set of estimates that he has to present. Mr. Ramjattan said the imperfections we will deal with, but we must deal with the concepts. [Dr. Singh: Those little boys will figure it out] Yes. Those little boys will figure it out, but these are real issues. Levity aside, this is serious business and therefore, when we bring matters to the House we must bring matters that are within our respective competence.
There is that dilemma that presents itself, and then there is another issue. There will have to be a Committee of Supply and the person who normally presents the estimates would have to answer, or the subject Minister would have to answer, but the subject Minister has been removed completely from the operation of the budget for that agency. Normally, by virtue of the law present and the law previous to that, what had to have happened was that the budget agency head would have submitted a budget to the subject Minister and that subject Minister would have submitted it to the Finance Minister. That is how it happens.
Now there is this unique situation where the executive has been removed from this equation so, Sir, I do not know who will answer to questions in the Committee of Supply. It cannot be the executive. No rationale principle justifies holding a person responsible for that which he has no control over. That is a basic principle of admin law. A person cannot be held accountable over that which that person has no responsibility for. [Dr. Singh: Are you suggesting that this is an absurdity?] It is an absurdity of extraordinary proportion. Mr. Greenidge, I suppose, will have to answer questions in the Committee of Supply. I do not know how he is going to seat himself to answer those questions. [Mr. B. Williams: What is going on?] What is going on, it is the Bill. You do not know that we are debating the Bill. [Mr. B. Williams: Enough is enough.] That is the Bill you all have brought to the House and it is my responsibility to speak on it. There are those practical dilemmas that we have to deal with. I do not know...
Then there are other principles that are far more important than those which I have dealt with. They have to do with constitutional concepts and precepts. As I said, at the commencement of my presentation, that quite apart from the content of the Bill, the purport and effect of it are far more damaging than the content. It is those aspects that I want to deal with.
I have spoken at length, in this House, about the doctrine of separation of powers. I have said that it is beyond any dispute that the doctrine applies to Guyana and the Constitution similar to ours. I have said also that by this doctrine power is devoured in our Constitution into three main arms, the executive, the legislature and the judiciary, and all efforts must be made to ensure that there is not interference and a trespass by one of these fountains of power on to the province of the other. All those are matters which are trite. Another important principle that comes in to play here is the doctrine of supremacy of the Constitution. Article 8 of our Constitution states that it is supreme and all laws, which collide with it, are void to the extent of the inconsistency.
I turn to article 218 of the Constitution. When one examines the Constitution of our country one sees very clearly that the financial responsibility of the state remains with the executive. Among those responsibilities is the responsibility to lay before the National Assembly estimates for the country, estimates for all agencies that are funded by public moneys. That is how our Constitution is structured. That provision is captured in article 218 of the Constitution. It states this:
“The Minister responsible for Finance or any other Minister designated by the President...”
As I emphasised on the last occasion, the fact that the President designates this Minister shows the epitome of executive power that is captured in this provision. it is an executive power delegated to the Minister of Finance, for the time being, but with the residuary power to delegate it to another Minister if the situation so arises. Let us take the provision itself.
“The Minister responsible for Finance or any other Minister designated by the President shall cause to be prepared and laid before the National Assembly before or within ninety days after the commencement of each financial year estimates of the revenue and expenditure of Guyana for that year.”
The Minister has two responsibilities. He has to prepare it and he has to lay it before the National Assembly. This Bill seeks to take away that power, both of them. It seeks to put that task of preparation into the hands of Mr. Greenidge, the Chairman of the Public Accounts Committee, as it relates to the Audit Office, and it seeks, also, to put in the hands of the Clerk of the National Assembly the other set of agencies to prepare the budget. That is simply a collision with...
Mr. Greenidge: A Point of Order. I am having some difficulty with these citing that the Comrade Attorney General seems to be engaged in. In another context it would be regarded as UFOs. Where exactly in the legislation does it say either Mr. Greenidge or the Chairman prepares the budget for Audit Office? Secondly, where exactly in the paragraph of this Act does it make reference to...?
Mr. Nandlall: I am being interrogated on my presentation.
Mr. Greenidge: No, because you are... [Interruption]
Mr. Speaker: Hon. Members, okay, one second. I am hearing a Point of Order that is that the Standing Orders have been violated. That is what I am entertaining here.
Mr. Greenidge: The Point of Order is a misrepresentation of what is before us. I will go on to say to you that I find no evidence of an article...
Mr. Nandlall: I would like to be told which Standing Order...
Mr. Greenidge: May I...
Mr. Speaker: Hon. Attorney General, could I hear the Point of Order please...?
Mr. Greenidge: I see no reference to the article 80 over which the Attorney General whipped up a set of guffaws and enthusiasms. I see article 85 in the margins; I do not see article 80. I am saying to you, Mr. Speaker, that the Attorney General should restrict himself to what is before us rather than generating UFOs.
Mr. Speaker: I am prepared to entertain a Point of Order, but I have not yet heard a specific point of a specific violation.
Mr. Greenidge: Mr. Speaker, I am making two points, that nowhere in the proposal, contrary to what the Attorney General is saying, it calls upon, invites or empowers the Chairman of the Public Accounts Committee to prepare the budget of the Audit Office. I am say that, and I say it unequivocally, because it states it no place. That is a misrepresentation. I am saying that no margin carries article 80.
Mr. Speaker: Hon. Attorney General, in the first instance, Mr. Greenidge is correct that there is no reference to the Chairman of the Public Accounts Committee preparing those…
Mr. Nandlall: That is correct Sir, I accept that, but it is that he presents it to the Assembly.
Mr. Speaker: That is in the Bill, but what you are stating is that he prepares…
Mr. Nandlall: Yes. I agree...
Mr. Speaker: He is correct.
Mr. Nandlall: That is correct
Mr. Speaker: …and I uphold that. In so far as the reference to the… Here in clause 3, there is a side notes that speaks to section 85(A).
Mr. Nandlall: Section 85(A), I said, Sir. [Interruption from the Opposition Members.] I have it here.
Mr. Speaker: If in fact different persons have heard different things, you will restrict yourself to what is in the Bill, that is, side note 85(A), clause 3 states 80 Part XII.
Mr. Nandlall: Sir, let me repeat. I said section 85A and that is a mistake. That is wrong because it should read section 80 and not section 85(a). I do not understand what the big issue is. The Bill that is before the House resides in the Clerk and the Chairman of the Public Accounts Committee the power to present estimates. I am saying that that power is resided exclusively by article 218 in the Minister of Finance or any other Minister designated by the President. Therefore this Bill violates article 218. It is more fundamental, Sir. What it does is that it takes from the executive, an executive function and passes it to the legislature and that means that the doctrine of the separation of power is violated.
In Hynes and the Queens Case, a case that we all know, and Mr. Ramjattan should know, the Parliament of Jamaica passed a Bill to establish a Gun Court Act. That Bill established the Gun Court Act, but provided that once that Gun Court finds a person guilty then that magistrate must send that person for sentencing before a board which is consisted of executive Members. That Gun Court Act was challenged in Jamaica. The Privy Council said that the judiciary is that arm of the Constitution that must deal with penalties and the Parliament cannot take from that judiciary a power to impose penalties and sanction and give it to the executive. Similarly, this Bill cannot takes power from the executive and reside it over to the legislature. It cannot; it is violated of the Constitution. [Mr. Ramjattan: It could do exactly that.] I cannot believe a lawyer is saying this, Sir, and from your party. This is elementary. I will move on.
This Bill strikes at the very heart of the separation of doctrine, very heart of our Constitution. Therefore this Bill …[Interruption from the Opposite Members.] As you know, Sir, I can only do my duty and those who are helpless, I cannot help. Irrespective of all the ideals that this Bill seeks to achieve, and they are all noble, they are the ideals that this Government embraces - transparency and accountability. We passed this Principal Act, the singular most comprehensive legislation dealing with financial accountability and transparency in this country. We passed it. Therefore we brought back the Auditor General’s Report to this country, when under Mr. Greenidge watch it never came.
Mr. Speaker: Hon. Members, this is a matter that has come up repeatedly. The Clerk has shared with me, through researches provided by the Parliament Office library, a list of all the Auditor General’s Reports which were presented to this House.
Mr. Nandlall: It was after Mr. Greenidge left office.
Mr. Speaker: That is not so. I will have that document circulated. It is not true to say that no reports were presented under the tenure of Mr. Greenidge.
Mr. Nandlall: Very well, Sir. [Interruption]
Mr. Speaker: Hon. Members, we are not going to have a side debate on this matter. I will, during the recess, ask the Clerk to kindly circulate the list. We are not going to have a side debate on Auditor General’s Report, on what years, please.
Mr. Nandlall: The point I am making is that whilst the Government espouses and embraces all the high ideals about transparency and about accountability, we have to find legally correct and appropriate mechanism to achieve them. We cannot come and waste Parliament’s time, waste your time, Mr. Speaker, and waste taxpayers’ money with mediocrity and travesty of this nature.
Thank you very much Sir. [Applause]
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