Our Judiciary4191 10 May, 2012
Minister of Finance [Dr. Singh]: Mr. Speaker, I rise to make a contribution to the debate on the motion moved by the Hon. Member, Mr. Carl Greenidge, in relation to the Courts of Guyana, in particular in relation to the financial arrangements governing and applying to the Courts of Guyana.
This motion is in fact one of a series of motions similar in nature to one addressing the Office of the Auditor General, on addressing the Service Commission and of course the one currently before us on the matter of the Judiciary.
Upon receiving the Order Paper for this Sitting, I quickly endeavoured to ascertain what the substantive business would be before us. Having seen the motions tabled by the Hon. Member before, but having had the benefit of subsequent experience, including the interactions that were afforded during consideration of the 2012 Estimates, it really was my expectation that I would find this and the other similar motions asterisked and deferred for future consideration. Indeed, I might even go so far as to say that I almost expected that the Hon. Member might have withdrawn these motions for reasons that I will outline shortly.
The matter of constitutional and statutory provisions governing the financial operations of certain Constitutional Offices found itself on a list of matters submitted by the Leader of Opposition to Government for consideration within the context of the discussion that was being held as we considered the National Estimates for 2012.
Colleague Members of this House would recall the Government readily agreed to engage in these discussions, received the written submissions and engaged, to the credit of both side, in lengthy discussions on the matters tabled by the APNU. In fact, I recall that we met on many of morning from 8.00 a.m. until immediately before this House was due to be called to order. In fact I seem to recall that on the occasion that we met, the calling to order of House had to be deferred somewhat to accommodate the arrival of some of the plenipotentiaries to those talks. I recall also that we met an occasion after Parliament. I remember we met one even from 7.00 p.m. until 1.00 a.m. in the morning. We met on one occasion; I think it was a Sunday, from 8.00 a.m. in the morning until 3.00 p.m. in the evening.
On many of the issues raised there were very clear understandings of the issues reached. There is no lack of clarity about what was said in relation to these Constitutional Office and what responses were offered by Government and indeed what was concluded upon and what emerged from those discussions. Those who participated in those discussions would recall that upon the matter of the Constitutional Offices financial arrangements being identified, Government offered some responses which lent clarity to some of the issues, including the fact that the Courts could not be considered in the same breath as the Service Commission, because the Courts were already at the current time the subject of a Constitutional Article, the said 222 (A) and third Schedule whilst… [Mrs. Backer: Article 122 (A)] Article 222 (A), I suggest you acquaint yourself with the Constitution instead of behaving like a rabble-rouser. This is the kind of Lawyer sitting on the front bench of the APNU.
Mr. Speaker, we were crystal clear that the Service Commission could not be considered in the same breath as the Supreme Court, because the Supreme Court is listed in the Third Schedule whereas the Service Commissions are not, and that is a fact. One has merely to turn to the Third Schedule to see that you could not possible deal with Service Commission in the same manner as you would or could the Judiciary. It only requires one to be able to read madam. [Mrs. Backer: I challenge you to look at 122 (A) and read it for me].
Mr. Speaker: Hon. Members in the same way that I asked that Mr. Greenidge be allowed to present, I am asking that we allow the Minister of Finance to do the same without the least bit of interruption, please. Thank you.
Dr. Singh: I was about to be un-parliamentary and say that there appears to be a “hooligan” in our midst. I was only about to do that.
Mr. Speaker: There is no need to even be about to or to impute or to even venture anywhere near there please.
Dr. Singh: Thank you very much Mr. Speaker. We discussed the matter of these Constitutional Offices at great lengths. Having discussed the matter of these Constitutional Offices, the fact that this was an issue that went to the core of the Constitution that required reflection and interpretation for subsequent application and in some cases, particularly in the case of those entities that are not currently addressed by the said Article 222 (A), might even potential require Constitutional amendment.
It was in fact agreed, or at least this is my recollection, that this family of matters will be the subject of further study and ultimately would be considered by the Standing Parliamentary Committee for Constitutional Reform. I do not believe that this was a figment of my imagination. There are others present here who participated in those discussions and who must surely recall that particular outcome from the said discussions. It was very clear; this was a matter that would appropriately be considered. There were a number nuances that were identified. In fact we had discussions about what type of expenditure could probably be a direct charge on the Consolidated Fund and what type would less appropriately be a direct charge on the Consolidate Fund. My own humble recollection is that Mr. Greenidge contributed actively and indeed meaningfully to those discussions. I remember Mr. Greenidge saying that indeed he understands that certain emoluments and entitlements should be a direct charge, but other types of expenditure might be less appropriate to be treated as a direct charge on the Consolidate Fund. I recall no less a person than Mr. Greenidge himself making that point and identifying by making that point the need for the issue to be the subject of closer and more detailed study, and ultimately, consideration of the Parliamentary Standing Committee for Constitutional Reform.
It would be recalled that that Committee is in fact itself a creature of our 2001 amended Constitution. Members will recall the large family of amendments made to our Constitution in 2001. Article 199 (A) was inserted into our Constitution under which the Parliamentary Standing Committee for Constitutional Reform was established and was given a mandate for continued review of the effectiveness of the working of the Constitution and to make periodic report thereon to this House with proposals for reform as necessary.
The Constitution establishes that Committee. That Committee’s establishment is recognized in our Standing Orders and elaborated in our Standing Orders. The Chairman of that Committee is the distinguished leader of the Opposition. In the Tenth Parliament, the Chairman of the Standing Committee on Parliamentary Reform is no less a person a person than the distinguished Leader of the Opposition. So, there can be no doubt that this matter is at best appropriately referred to the Standing Committee on Constitutional Reform. This is what was agreed in the multi-party talks during the consideration of the 2012 Estimates. To my astonishment, the Hon. Member Mr. Greenidge proceeds today to move this motion – I did not realise that the Hon. Member needed to be reminded so frequently of his good honour, but I am happy to call him the honourable member which is the protocol required in the Parliament.
Mr. Speaker: Just by way of clarification, if I may. It is not improper to refer to a Member by his/her title whether Mister or Miss. We are courteous by saying Honourable, but it is not against the Standing Orders or the etiquette of the House.
Dr. Singh: Thank you. In any event, to my astonishment, the Hon. Member Mr. Greenidge, notwithstanding what must be a clear recollection of the discussion had with Government, proceeds to move this motion. I do not know how to interpret this. Is this a reneging of the undertaking and understandings reached when we met? Is this a reneging? In fact, the motion seeks to make a very definitive decision, abandoning the need for the study that was recognised to be necessary, abandoning the need for the consideration of the appropriate appointed body, the Constitutional Reform Committee, Mr. Greenidge today persists with a motion that pre-empts any such study, and consideration by the Committee and arrives at a conclusion on what needs to be done in relation to this matter.
So, I want to urge, if there is still time, that Mr. Greenidge reconsiders the matter of putting this motion to the House, because he recognised, during the course of these discussions that I referred to, that this matter was a far more complex matter than simply to say the budget of Judiciary should be a direct charge on the Consolidated Fund. In fact I will say that the motion does a curious thing. In the second whereas clause, the motion replicates a part, ignore for the time being the incorrect reference, I presume Mr. Greenidge means of course Article 222 (A), the second whereas clause replicates or seeks to replicate a part of Article 222 (A). In particular it says “that in accordance with article 222 (A)”, I correct what I presume to be like I said a typographical error, “of the Constitution, all Courts shall be funded by a direct charge upon the Consolidated Fund and such Court shall operate in accordance with the principles of sound financial administrative management.” What the motion conveniently ignores is that Article 222 (A) also explicitly says that the budget of third Schedule entities including the Judiciary shall be approved by the National Assembly after a review and approval of the entity’s budget as part of the process of the determination of the national budget. Conveniently, and I do not want to use the word suspiciously, the motion omits that part. So, if the intention is to be faithful to our Constitution then the omission of that fundamental and germane part of Article 222 is going – I hear the word dishonesty mentioned – will result in a perverse resolution passed by this National Assembly, a resolution that will do offense to and collide with our Constitution. This House cannot move a motion that will make the budget of the Supreme Court a direct charge on the Consolidated Fund and ignore the second part of that Article which gives the legislature an explicitly defined role in the determination of the Budget of all third schedule entities.
I say to Mr. Greenidge that it is difficult to image that that could have been an accident. In fact, in his presentation on the motion, in moving the motion, Mr. Greenidge actually discloses his intent. The Hon. Member says that the intention of the Constitution is that there must be no review or consideration of the Judiciaries budget. He said there must be no role for the Minister or for the Parliament to consider the Judiciaries budget. He said that there must be no review of the Judiciaries budget. That is not the intent of Article 222 (A). If the motion is framed by Mr. Greenidge against the background of 222 (A), the omission of that second critical aspect results in a motion that will generate, if this House were to approve it, a Resolution that will collide directly and frontally with the intention of Article 222 (A), and it is fundamentally flawed.
In fact, the Hon. Member Mr. Greenidge makes reference to other jurisdictions. He cited the United States of America for example. He cited the United Kingdom earlier in his presentation. I was here and I heard the reference. What Mr. Greenidge does not tell us is that in many of those jurisdictions, even where you have the Budget of an entity like the Judiciary as a direct charge on the Consolidated Fund, you do not have an unfettered and unlimited call on the Consolidated Fund.
In fact, in almost all of those jurisdictions there is a formula that is imposed, whether it be a percentage of the national budget, or a percentage of the state budget in the case of a provincial or a federal system, or a baseline adjusted by inflation year after year, or some other formula. In almost all of those jurisdictions what the constitution and the relevant laws do is not give an unlimited unfettered, open, bottomless box. In fact, a very rigorous and visible formula is legislated before such a provision can be implemented. So the attempt to implement Article 222, without due attention now, apart from the fact that Mr. Greendige motion seeks to ignore and bypass this parliamentary role, in fact, Mr. Greenidge’s motion seeks to exclude the Parliament from any role in consideration of the judiciary’s budget.
Mr. Greenidge: Mr. Speaker, on a Point of Order, can I just remind you that Dr. Singh was not here during the entire presentation. I just wish to remind you that I cited the example of judges and lawyers who have asked us on the APNU side whether we intended to allow the judges unfettered increases or unfettered amounts. You remember I said that but I am being told I did not say that. I also made reference in the case of the United States and subsequently to the need for the document to be presented to Parliament for its examination. Thank you very much.
Dr. Singh: Mr. Speaker, in fact I did hear the Hon. Member say exactly that. I will repeat what I recall him say. He did say that judges and lawyers had asked whether the intention of this motion was to give the judiciary unfettered access to resources. He did say that he answered in the negative. He said, no, that is not the intention. In fact, I think ‘the Government’s financial guidelines’ was the phrase used. [I see Mr. Greenidge nodding in the affirmative] That the Government’s financial guidelines will apply. But what are these Government financial guidelines being referred to? How can you say the Government financial guidelines will apply when in the same breath you say the Minister must have no role? The two do not sit together. You cannot say the Minister, as the Government’s fiscal representative, fiscal manager, must have no role but the Government’s financial guidelines will apply. What are these nebulous financial guidelines that will apply? Is Mr. Greenidge now coming back to say that there must be a role for the Government? Is he now coming back to say there must be a role for the Minister of Finance or for any other minister? Is he now saying there must be a role for the Executive? There is an inherent and obvious, blatant, contradiction in the two things. Mr. Greenidge cannot possibly say the Minister and the Executive must have no role on the one hand but on the other hand, and in the same breath, say the Government financial guidelines would apply to limit the unfettered access to resources. You cannot have it both ways.
With these obvious fundamental flaws - and the records will reflect if my memory fails me, and I am not completely faithful to Mr. Greenidge’s verbatim presentation - this is yet another example. There is the omission in the motion of the part of Article 222A about the role of the judiciary that is so fundamental. There is the reference - not in the motion, but in the discourse and debate on the motion - to Government’s financial guidelines but the motion makes no such reference. The motion in fact leaves a completely unfettered pool of resources open and available. It is not sufficient to have a motion that does not refer to these guidelines but in your discourse speak of these guidelines. If there is the intention that the Executive must have a role, that role must be defined in the motion. It must be defined in the resolution that will emerge from this House having considered the motion. So if Mr. Greenidge’s intention is that there should not be unfettered action to resources, that there should be a role for the Executive or some benchmark of financial responsibility, it has to be included in the motion, Sir, but it is not. This highlights yet again a fundamental flaw in this motion.
Mr. Speaker, I will say this, the Hon. Member Mr. Greenidge asserts the wording of the Constitution. The Member makes an issue of the fact that the Supreme Court of Judicature is listed in the schedule of the Fiscal Management and Accountability Act. He asserts that that inclusion in the schedule to the Fiscal Management and Accountability Act of 2003 is somehow inconsistent or incompatible with Article 222A. The fact of the matter is that Article 222A in its current formulation explicitly recognises that Third Schedule entities shall be subject to the budgetary process. It explicitly says that the determination of the budget of these entities shall be the subject of:
“Review and approval of the entity’s annual budget as part of the process of the determination of the national budget”
That is a verbatim extract and quotation from the Constitution. So there is nothing incompatible; the Constitution recognises that these entities are funded by the budget; the Constitution recognises that these entities are subject to, and I will repeat subject to, the process of the determination of the national budget. So there is absolutely nothing incompatible between Article 222A once it is read in its fullness, not as it is dissected and selectively quoted in Mr. Greenidge’s motion. Once Article 222A is read in its fullness there is absolutely nothing incompatible with that article and the inclusion of an entity in the schedule listing budget agencies.
So fundamentally flawed is this motion in its formulation, its content, and in particular its presentation before this House, especially in light of the fact that we discussed these matters and agreed on a course of action. The motion now conveniently ignores those discussions, casts them aside, as if they never occurred and, seeks now to leapfrog a process that was agreed upon, to arrive at an outcome that is itself a fundamentally flawed and perverse outcome. I really do not believe that this motion merits further attention from me. I have highlighted a number of aspects of the motion. I have highlighted a number of aspects of the motion which demonstrates clearly that it is inappropriately worded, fundamentally flawed and brought to this House at a time that it should not have been brought to this House. I believe there is yet time so I urge the Hon. Member at the appropriate time to withdraw this motion from consideration by this Hon. House.
I thank you very much. [Applause]
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