The Constitution (Amendment) Bill 2013

Hits: 3351 | Published Date: 14 Feb, 2013

| Speech delivered at: 38th Sitting - Tenth Parliament

| Speech Delivered by : Hon. Jaipaul Sharma, MP

Mr. Sharma: Thank you, Mr. Speaker. The Hon. Member, Mr. Nadir, alluded to a number of areas of concern to me and I would like to go through this particular Bill in relation to the various sections but this particular Bill that we are dealing here with, Bill 5 of 2013, has a direct relation to the Bill that this House just passed, Bill 4 of 2013. Before I get into the Bill I just want to clarify or make some statements in relation to interference by the administration and it was said that the administration may have interfered in the judiciary by affecting a payments of a judge’s benefits and the Hon. Member offered his resignation if this could be proven; however, that fact that one has persons in the judiciary and they are not appointed or they are not confirmed is in direct interference with the judiciary so I hope that the Hon. Attorney General and Minister of Legal Affairs will be bringing an amendment to address such issues in which the judiciary would operate as such that the Judicial Service Commission appoints a judge, recommends the appointment to the President and within a certain time the President shall appoint.
If there are cases where there are judges and they are not confirmed them then it is inference, because the judge will be fearful of his decision because his pension and gratuity will depend on it, so it is interference.
In relation to clause 2 of Bill 5 of 2013, it sought to enforce the protection of constitutional agencies and it sought to amend section 54 of the Fiscal Management and Accountability Act because section it states this:
“The Minister may, at any time, suspend the making of any payment or any expenditure of public moneys, other than statutory expenditures, if, in the opinion of the Minister, the financial exigencies of the public interest so require.”
That is why the mover of this Bill is saying that section 54 has to be amended. It is important to amend section 54 because the Minister, at will, could say that he would not release funds for this particular expenditure. This is important because if we do not amend this there could have interference. Members of this House may remember, in relation to GECOM, in which the previous Bill, Bill 4 of 2013, is trying to protect GECOM, in this sense, in that in 2009 GECOM was in a situation where the landlord locked out GECOM’s officers. The Chief Elections Officer turned up to work at 7 a.m. and found that the doors were padlocked and had chains and concrete columns were put …, so that no vehicles could have parked. That was as a result of the Ministry of Works having a difficulty with the landlord because the landlord was occupying a land…
Mr. Speaker: Mr. Sharma, do you have that in empirical form?
Mr. Sharma: This is general knowledge; it is what happened.
Mr. Speaker: No. It may be street knowledge. A lot of things are spoken about…
Mr. Sharma: No. That was well known. I was at GECOM…
Mr. Speaker: I do not know, but it is a very strong statement to make. Unless you can support it to say that the Ministry did what it did because it had a problem with a piece of land, and all of that,… I do not know, but I really would not be able to allow you to make such a strong definitive statement in the absence of anything that…
Mr. Sharma: I worked with GECOM.
Mr. Speaker: Well, I do not know…
Mr. Sharma: And I could ask the officers of GECOM to present the evidence.
Mr. Speaker: I do not know. I will not allow that.
Mr. Sharma: I am just indicating the way that the administration could interfere and how it could use the purse string. I do not know if I am allowed to just explain what happened here…
Minister of Public Works [Mr. Benn]: Withdraw it.
Mr. Speaker: There is no need to withdraw it. I am just saying that you have made a statement and, perhaps, just move on from it. There is no need to clarify it or anything. I am just advising you not to go…
Mr. Sharma: That is the example of the executive utilising…
Mr. Benn: Mr. Speaker, I was hoping that the Hon. Member would withdraw the statement.
Mr. Bulkan: He was not asked to withdraw it. He was asked to move on.
Mr. Benn: Mr. Speaker, on a point of clarification. The matter the Hon. Member referred to related to the Ministry taking action in repossessing a building in which the persons who owned the GECOM’s building squatted and they were renting another building to GECOM. It was completely a separate issue and it was proper action which was taken by the Ministry. It was not followed up in any court.
There was indeed a situation…, and much later, in fact, the staff of GECOM were locked in the building by that gentleman…
Mr. Speaker: But that is a different matter.
Mr. Benn: That is a completely different matter and irrelevant to the issue.
Mr. Speaker: Thank you. We welcome your clarification. Mr. Sharma, I invite you to move on.
Mr. Sharma: Mr. Speaker, I will move on, but let me just make this point. It is to forget about the Ministry of Public Works because it had a direct impact on the Ministry of Finance. The Ministry of Finance decided to withhold the releases to GECOM for it to pay the rent.
Dr. Singh: With your permission, Sir. I am, in general, trying to not interrupt my good friend, young Mr. Sharma, but having failed in his efforts to cast aspersions on the Ministry of Works he has now moved on to try to cherry-pick another Ministry. I urge you to use your good office to ask the Hon. Member to desist from casting aspersions on one Ministry after another and to move on to make the point that he is trying to make.
Mr. Speaker: I did not have my undivided attention, Mr. Sharma. What is the point you were making?
Mr. Sharma: I am giving evidence that those who control the purse string, the executive, will prevent the independence of these various entities…
Mr. Speaker: In giving evidence, what was your exhibit?
Mr. Sharma: The evidence that I am giving is my personal knowledge of what transpired.
Mr. Speaker: Mr. Sharma, we all can speak of instances where we feel that something has happened.
Mr. Sharma: It was public knowledge, reported in all of the newspapers.
Mr. Speaker: I do not know, but I am asking you to continue the debate.
Mr.: Sharma: Let me go for another example. Another example was when GECOM was preparing for an exercise, called the claims and objection exercise, for preparation for the Local Government Elections. GECOM went ahead, after receiving a very handsome sum, for the preparation of the Local Government Elections and, thereafter, going three months into the activity, funds were withheld to pay scrutineers and the persons who had to prepare food, and so forth. A year later they were paid because they had to prepare for General and Regional Elections for 2011. This is evidence to show the importance of Mr. Carl Greenidge putting this particular section here to protect constitutional agencies. That is the point that I wanted to make.
Dr. Singh: Mr. Speaker, may I, Sir, with your permission? I do not wish for us to get drawn into a debate about whether a particular institution was accounting properly from the funds that it was given.
The Ministry of Finance has a responsibility to ensure compliance with financial regulations before funds are released. The Hon. Member is introducing some spurious story here based on speculations and based on his own interpretation of events. May I ask, again, with your permission - he is a young Member of Parliament who deserves our encouragement - to urge the Member to stop infusing this debate with speculation and speculative references?
Mr. Speaker: Quite frankly, I happen to know a few scrutineers, personally, who claimed that they were not paid and so I do not know. All I am saying is that the reference… Whatever may have been the reason, I found it to be innocuous, quite frankly.
Mr. Sharma, the point is that I do not think that it has been an accusation that money was deliberately withheld to pervert…
Minister of Public Service [Ms. Westford]: That is what he said.
Mr. Speaker: He has not said so. He said that here is a situation where scrutineers did not get pay for one year. I think he was saying that if GECOM had access to its moneys they would have been paid promptly. Whether or not the accounting principles were being impugned, we do not know. All that he is saying is that if GECOM had money in hand it would have paid the scrutineers. He is not saying it was deliberately withheld…
Dr. Singh: And with your permission, Sir, I am saying that there is an agreed number of scrutineers; they are paid on agreed rate. Once that rate is applied to the number of scrutineers and the Ministry of Finance releases those funds to GECOM it is quite conceivable…
Mr. Speaker: Okay, Dr. Singh…
Dr. Singh: … that the non-payment…
Mr. Speaker: Thank you.
Dr. Singh: With your permission, may I finish the point that I was making?
Mr. Speaker: Dr. Singh, we are really now… you are listed as one of the speakers. I would ask that you, perhaps, make a note. You will be given ample time to respond. Mr. Sharma really is giving instances, which are in his opinion. If I find that he is transgressing I will inform him, but, as I said, these are, for the most part, innocuous. No person has been named. The one about the Ministry of Public Works taking action because of a piece of land, I felt that one warranted an intervention by the Speaker. This one about scrutineers not being paid, there is no accusations as to why they were not paid. It is just a statement that if GECOM had moneys in hand they would have been paid. Let us proceed.
Mr. Sharma, I think we get what you are saying. What is going to happen is that if you have fifteen of such exhibits to lay you are going to find an objection to all fifteen.
Hon. Members (Opposition Members): No.
Mr. Speaker: I still have conduct of this debate and so all of those who are urging Mr. Sharma to say what he wants, I could still say to him to move on. I am saying, to Mr. Sharma, move on.
Mr. Sharma: This Bill, which was passed recently, Bill No.4 of 2013, is welcomed. I am sure that GECOM shall welcome this because this is what it needs so long and here the Opposition is presenting the Bill for it.
As I mentioned, section 54 of the Principal Act is important because it does not just offer protection for GECOM, it offers protection for a number of agencies which are omitted from the Third Schedule of the Constitution, that is, the Public and Police Service Commissions, the Teaching Service Commission, the Guyana Elections Commission, the Director of Public Prosecutions, Office of the Ombudsman and the Public Service Appellate Tribunal. I am sure that those agencies would be very happy for this move tonight.
Let me move on to another section of Bill No. 5 of 2013, clause 3, which inserted section 80 (b). At section 80 (b) I think the Hon. Member Carl Greenidge looked at the agency - in the first line he just mentioned agency - but should mention constitutional agency because there is no interpretation of agency.
I move on to clause 3 subsection (2). I do not see any problem with the Minister of Finance confirming with this particular section. This particular section speaks about the process in which the Minister of Finance should follow in carrying out these recommendations of this Bill. This Bill puts forward, in clause 4 it proposes, that these agencies are now created and this is how they have to be operated. I understand the Minister of Finance’s unwillingness to support this Bill because I believe he was very instrumental in the Fiscal Management and Accountability Act, itself, as a budget director. I am saying to the Minister of Finance that clause 3 subsection (2) should pose no difficulty and the reason it should pose no difficulty is because of the fact that in the Fiscal Management and Accountability Act there is section 12 and that section speaks about a timetable which states this:
“The Minister shall, not later than one hundred and eighty days prior to the commencement of each fiscal year, establish a timetable for the preparation of the annual budget proposal pertaining to the next ensuing fiscal year.”
The Minister should have no difficulty with this particular section that is proposed by the Hon. Member Carl Greenidge because he will have to produce a timetable and it will encompass the recommendation. It is in the Bill now that the annual budget proposal shall be presented to the Clerk and Members, and also himself. The Minister has an opportunity here to include this new aspect for these new agencies in this timetable. I do not see a difficulty and the Minister will speak and I would like him to say that we have difficulty because I am telling him that there is no difficulty.
Clause 3 (3), there is no difficulty here too. I do not see the problem that the Minister would have.
Clauses 4 and 5, there is also no difficulty.
In terms of clause 6, there is no difficulty because… I do not want to go into the particulars, but it is not consistent with article 222A. If the Minister shall want to say that there is a difficulty, there is no difficulty because it is consistent with the constitution of this country.
Clause 7 is consistent with the article 222A (a).
Clause 8 is consistent with article 222A (a).
There is no difficulty I could see here that the Minister of Finance shall refuse to implement any of these recommendations of this Bill. It would be interesting to me, in relation to what the Minister will object.
Mr. Speaker, you did ask the question earlier that if this system, which will actually be required to take place between Bill 4 and Bill 5, existed anywhere in the world. It existed here in the form of the Audit Office. The Audit Office has a similar situation here, Mr. Speaker. It is because the Members, on that side, do not want to listen; they do not want to see how it exists here. The Audit Office was a budget agency. It was protected in the Constitution then the Minister of Finance used section 82 of his Fiscal Management and Accountability Act to remove it and treated it in the manner in which the Hon. Member Carl Greenidge is saying how these entities should be treated. It exists that such an entity was taken out from a budget agency and treated in that way.
Mr. Speaker: How is the budget for the Audit Office formulated, presented and financed?
Mr. Sharma: Well, the Audit Office prepares the budget and it comes to the level of the Public Accounts Committee which will deliberate and pass it on to the Minister of Finance, but he will see what was presented. In fact, what happens with the Auditor General’s Office is that it did not benefit from the recommendations that the system is recommending now, which was the system that the Government should have followed. This is the correct system, Mr. Speaker, and the Hon. Attorney General is speaking and interpreting article 222A of the Constitution wrongly, as I would interpret it differently.
First of all, article 222A is an independent article… [Interruption]
Mr. Speaker: Members, this is important. I need to hear the Hon. Member. It is very important, of what he is saying. Hon. Attorney General, please take note.
Mr. Sharma: Yes. I think he should listen carefully. Article 222A, as this side of the House is saying, is an independent article because it is captioned with a capital letter “A”. It did not go as article 222 (1), (2), (3), (4), (5) and (6). It is not a subsection. It goes with a capital letter “A”. The framers did not put a common letter “a”. It is the indication to the argument that the Hon. Minister Mr. Nandlall did put up a situation where there was a difficulty but, indeed, what happened was that there was a loophole. I do not know because I was not there in 2001, but there was a loophole and they thought that they were going to expand the Constitution by using the capital letter “A”.
Article 222A is a separate article and this is what it sates… If it is read as how the Hon. Attorney General read it Members are not going to get what it is saying. It has to be to read in this way and what it sought to do was to expressly say that the entities are independent.
“In order to assure the independence of the entities listed in the Third Schedule -
(a) the expenditure of each of the entity shall be financed as direct charge on the Consolidated Fund, determined by a lump sum by way of an annual subvention approved by the National Assembly after a review and approval of the entity’s annual budget as part of the process of determination of the national budget.”
It sates a review and an approval. The Hon. Attorney General is saying that the Minister of Finance shall be reviewed and approved. No. It is here. It is speaking about it is here, that it shall be approved. This is where the misinterpretation arrived because it did not speak about the entire budget; it spoke about one agency. The entities annual budget one by one….It was speaking about this National Assembly shall review and approve.
This is the argument that the Hon. Member Mr. Nandlall is saying that it is the Minister that is responsible for this which is not correct. It is the National Assembly and the National Assembly should be allowed to do its work and deal with such matters.
Thank you. [Applause]