Our Judiciary3246 10 May, 2012
Mr. Ramjattan: Thank you very much to my learned friend Mr. Nagamootoo first and of course, thank you very much Mr. Speaker. I rise to... [Mr. G. Persaud: To second the motion.] You can say that, to second it. This motion is to correct an aberration that can be easily made, notwithstanding what the learned Minister of Finance has been indicating as apparently cannot be done.
I want to make this point that when this was debated in 2001 and prior to that, we had the calumny of a history of where our judiciary was subject to executive control and was subject to a whole host of things even [Mr. Nandall: When Greenidge was there?] ...when Mr. Greenidge was there.
Also, to a certain point when even we had certain allegations being made during the course after the 1992 period. It was that reason where we wanted to erase and eradicate completely that kind of control that this 2001Constiutional Amendment came into being. We must understand the origins before we can understand the entire process behind it and then we can understand why we are here today.
Independence of the judiciary can be affected at the adjudicatory functioning. That is where a judge could be called up on the telephone by some executive member who says, “I want a decision to go a certain way”, that is what I mean by adjudicatory function. That is what Article. 122 A (1) is getting at, when it says and more than that, when we enshrine as you rightly mentioned Mr. Speaker, to the extent of having a two-thirds majority for its amendment.
The judicatory functions of those persons who are judges, is expressly stated here that they shall be free and independent from political, executive and any other form of direction and control. My reading and knowledge of what transpired during the course of the Constitutional Reform process was that we wanted to emphasised that, that indeed the adjudicatory function of a judge was going to be made free from any control and direction and that is what Article 122. A (1) of the Constitution meant and the whole purpose of it was.
But also, the judiciary can be affected negatively and its independence damaged by administrative arrangements. Not only at it adjudicatory levels could it be affected, but administratively, executives of the day can deal with the financial resources of that judicial branch of Government or the State and damage it and what was intended now to cure that potential damage and to ensure that we do not have that happening in future, was what was catered for and provided for by Article 122. A (2):
“...all courts shall be administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund;”
That is what I want to say in rebuttal to the argument of the learned Hon. Minister of Finance. That it is not the ludicrous scenario of, let us say, the Registrar, who is supposed to be literally the executive officer under the Supreme Court, the Registrar that sits here, the CEO, that they are going to come and say they want $2 billion for the judiciary. It has been taken to ludicrous lengths, that all when they come, can come for all manner of moneys. I want to say that when we were dealing with that Constitutional Reform process, we said that that the proviso whosoever it was then, I think it was Mr. Cecil Kennard, he cannot come with anything. He has to come because the proviso being he should operate in accordance with the principles of sound financial and administrative management. That is the proviso that stops, that is why we must give meaning to the words that we were providing during the 2001 process. Meaning that a Chancellor who is President of the Supreme Courts System or the CEO comes as Registrar and says we are going to want a lump sum of $10 billion. That is not in accordance with the principles of sound financial and administrative management. So the caveat that they cannot come with ludicrous asking of that kind of sum is in this Constitution too, it is provided for there and that is what makes the distinction. This is what fetters the unlimited demand of a Chancellor and or a Registrar. That is what we were talking about when we spoke in 2001, but it would appear that some people forget what we were talking about.
I also want to mention to give teeth and to flesh that provision, which is so enshrine to a higher order of needing a two thirds majority. That we then also plugged in Article 222. A, a certain provision and that provision is what now gives it flesh and teeth. How do you do that knowing that it is going to be but a fundamental departure from what we had in the accounts and estimates before? We arranged that it should be specified in order to show the independence of the entities listed in the third schedule. What does the third schedule have? It has the judiciary. I will come just now to the Ethnic Relations Commission, because had the Ethnic Relations Commission not been a budget agency, it would have been hard put for us to cut what we did in relations to the... because it would have been an entity that came under the third schedule and it would have been protected, but they wanted to put it in the budget agency for their own things and we could have cut.
I want to say this, to give it flesh and teeth, that same Article 122. A (2), the administrative autonomy, it was stated that the expenditure of these entities, that is the judiciary, shall be financed as a direct charge on the Consolidated Fund, determine as a lump sum by way of annual subvention approved by the National Assembly after a review and approval of the entity’s annual budget as part of the process of the determination. What that means is that from the previous review, of let us say the 2011, what they had gotten for the Supreme Court, would be the basis for going forward and not that they are going to start with ... I think they had $1.5 billion last year, they are going to jump to $10 billion in 2012. That is what it is all about. This is a Constitutional provision.
Each entity shall mange its subvention in such a manner as it deems fit for the efficient discharge of its functions. So if a Mr. Carl Singh or a Dianna Insanally is going to ask for a certain subvention here, it cannot be to the ludicrous lengths that it is unfettered and that we cannot control it. We have the Constitution telling us how we can control it. That is what is meant here. And moreover it shall be subject only to conformity with the financial practices and procedures approved by the National Assembly. We here in this National Assembly, has what is called, financial practices approval to ensure accountability. It literally means that we just cannot cut it, we have to have what is called, these procedures and what has been happening since 2001, is that we have not been catering for these procedures. We have not been doing anything; we have remained silent and more than silent.
After passing this in 2001, we go on to 2003 and literally nurtured that Constitutional provision by putting in this 2003 Act, which is by the way, in my view, this aspect of it which can be severed, is unconstitutional and this section that says, in the schedule that it is a budget agency. So they have what is called executive control and the Supreme Court and the Judiciary has ceased to be in accordance with the shape it ought to take as a result of that Constitutional provision Article 122. A and B, it has been misshapen by this Fiscal Management and Accountability Act (FMAA) Article, that schedule budget agency. I want that to be understood.
What this motion seeks to do is nothing else, but to do that that which is going to beat it into shape by taking it out as a budget agency. It is not as if we have to go to court or we are going to in anyway have to bring some declaratorily order in the court, we can do that. This is what by a motion demanding that the Minister do it. The Minister did it with the Audit Office recently and he did not even need the National Assembly’s support. What section 82 of the Fiscal Management and Accountability Act 2003 says?
“The Minister may by order amend that schedule.”
A previous section had given him the authority to go and put in what shall be budget agencies and he did do that in the third schedule, but under section 82, he can now, by order, amend the schedule and then take it out. That is all the motion is seeking. Take it out it as a budget agency and more than that, what the motion is also asking, because it is not an area or realm that is not somewhat uncharted. We have to make what is called amendments to our estimates too, because in our estimates in Volume 1 at page 578, you will notice that there is a certain set of, at page 578, I think it is where you have... The Ethnic Relations Commission, I am going to come to that. In that you have what is called the Supreme Court being given a certain set of moneys which it is going to expend on workers, contracted workers, this that whatever. I have not gotten the page correctly, but whatever it is that still, although one can say that there is a certain budget that is going to be presented by the CEO and the Chancellor or whoever, it is still subject to the executive branch saying, well change that and that and whatever, even if they do not do it when it is a budget agency. But what is suppose to be done now is to have a separate page in Volume 1 that is going to say, Entities in accordance with section Article 222. A. That is what it is suppose to have now, not statutory bodies, another page.
That is what this motion is asking for. That be it also resolved that first of all we change the Fiscal Management and Accountability Act to remove the Supreme Court as a budget agency, but also that we do the necessary changes that should be reflected in the annual estimates to be submitted by the Minister for the approval of the National Assembly.
So please do not get the mover and now that I said I am the seconder of the motion, wrong at all. It is indeed the way to go to ensure that we transform what was first of all somewhat at the dictation of the executive branch that which the Constitution demands it to be and that is an autonomous administrative body.
We know that the history of the judiciary in Guyana was subject to a number of anomalies and aberrations, I do not want to get back there, but Prof. Harold Latchman have spoken about it, Mr. Bertum (Bertie) Ramcharran has talked about paramountcy of parties and all of that. But we are indicating now, that since 2003 we have gotten this Article in the Constitution, we now have to be the gentlemen and gentlewomen here to give it teeth. What this motion seeks to do is to give it teeth and we must not get to the ludicrous lengths. Oh they will come with unfettered demands and we cannot stop them. No, it is not that. I do not believe that anyone in the Government branch would say that members of the judiciary, especially the highest of the hierarchy will come here and talk nonsense about asking for $10 billion or $20 billion. No. So all of that was just to throw dust in our eyes, to cloud the issue and not want to give what respectfully ought to be given to the Supreme Court. Thank you very much Sir. [Applause]
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