The Constitution (Amendment) Bill 20133747 14 Feb, 2013
Mr. Greenidge: Thank you very much, Mdm. Deputy Speaker. This Bill before the House has been the subject of a number of exchanges before when it was laid for the first reading. There were a number of interventions on it, but prior to that you will recall that this House had passed a motion drawing to the attention of the House and calling upon the Government to remedy certain deficiencies which were exhibited in the various arrangements, including the Fiscal Management and Accountability Act (FMMA) as regards the question of the selected or range of commissions.
Let me put the matter another way. The Schedule 3 of Article 222 (a) omits, probably by oversight, all but a few selected rights commissions and as a consequence there is some ambiguity over the treatment and the state of independence – financial independence in particular – of these agencies.
Let me remind colleagues that the Constitution of Guyana, let us say, titles 6 and 7 in particular, list a number of agencies and treat them as deserving of being independent; independent for purposes of carrying out the functions laid out for them. There are a range of agencies here. One will see, for example, if one goes to subtitle 2 of title 5 one would see mention being made of the Ombudsman, one would see mention being made of the Judicature which is under title 6. If one looks further, one will see the Judicial Service Commission, the Public Service Commission, Teaching Service Commission, Police Service Commission, Ethnic Relations Commission and a variety of others, such as the Human Rights Commission, Public Procurement Commission, et cetera. I mentioned these, Mdm. Deputy Speaker, so that you can see that these are a range of agencies important for the protection of our fundamental rights. They also include service agencies which, as I indicated in my presentation last year, are important in protecting or putting a veil between Public Servants and the execution of their functions in an independent and impartial manner and the possibility of Government action against them for being so impartial. At the same time putting a veil to ensure that the Public Servants in the execution of their duties are not given space to exercise political prejudices and platform on behalf of Political Parties.
What I am saying is on the one hand these are important entities constitutionally. They are important in the protection of our rights, either as individual citizens or as bodies such as Public Service Employees, policemen and so forth. That establishes the importance of these entities that are in the schedule but if one actually looks at the third schedule which arises from Article 222 (a) which speaks of: “In order to assure the independence of the entities listed in the third schedule…” That is the substance but when one goes not to the third schedule one will find that although I have mentioned a variety of bodies to you just now the third schedule actually only lists the following:
The Ethnic Relations Commission
Human Rights Commission
The Women and Gender Equality Commission
The Indigenous Peoples Commission
The Rights of the Child Commission
The Office of the Auditor General
I will just remind you that in the case of the Auditor General this particular schedule and the strength of the commission of the Constitution was, in essence, undermined by the Office of the Auditor General being treated from 2003 until 2012 as a budgetary agency, which means that it did not enjoy the independence set out for it in the Constitution. I hope that that is clear.
I am saying to you, Mdm. Deputy Speaker, that in addition to the Ethnic Relations Commission and the others that I had just listed, the other rights commissions, as it were, that are mentioned in the titles 5, 6, et cetera, of the Constitution have not been mentioned. What this constitutional amendment seeks to do is to add these entities to Schedule 3 in keeping with their treatment in the body of the constitution itself. As I indicated before, the omission has no logic. There is not logical basis for a separation between the Office of the Auditor General, for example, and some of the other Commissions here, the Director of Public Prosecution (DPP), for example.
What we have done is to set out in the schedule under the bill. The bill seeks to amend Schedule 3 by adding these agencies that have been omitted from the schedule. If I might just draw your attention to the ones that include Chambers of the Director of Public Prosecution, the Judicial Service Commission, the Public Service Commission, the Police Service Commission, Teaching Service Commission, Public Service Appellate Tribunal, the Procurement Commission, Office of the Ombudsman and the Guyana Elections Commission. The importance of the independence of these bodies, I hope that we are not going to be spending time arguing today arguing about and therefore I think we can devote our attention to those other aspects of the bill with which colleagues may perhaps be unclear.
One of the things that I would like to emphasise, and I hope that I do not have to resort to reading the records of meetings, on the last occasion when we considered this bill – at the first reading – the distinguished Attorney General cited an agreement between the two sides in relation to deferring consideration of this matter to some tripartite committee. I would just like to remind the Attorney General that at the meeting at which I was present and the Leader of the Opposition together with Mr. Carberry who had sent the record or a version of the record of the meeting to their secretary, the situation was clear. The other side did propose that these matters be considered in a tripartite body. They did recognise and I am amused to see the position that the Attorney General takes because at that time it was recognised that there was some problem, some inconsistency in the Schedule 3 and the body of the constitution and at that time both sides agreed that the matter needed to be corrected. On the part of the Government, the Government’s proposal was that we deal with it in a tripartite committee. As you know the tripartite committee has met on a number of occasions and nothing has actually been resolved in that context.
At that time the Government aired the view that since this item pertained to the constitutional changes it was necessary to have a two-thirds majority in order to effect the change. Our own deliberations at the time did not agree with the, if you like, the passage or the transfer of this item from this parliamentary forum to any tripartite body. There was not any such agreement. I have with me the two sets of records written by the two sides that we did not agree on; we did not finalise. To take the Government’s rendition of the record and treat it as an agreed upon record is quite unacceptable. Our position was that two parties had enough votes between them to carry the matter if the two-thirds majority was required and we did not have any reason to believe that the third political party would not support it so it was just a question of will. Right now we are arguing that the Article 222 (a) is not mentioned specifically in the Constitution, which is under Title 2, where it sets out the procedure for altering this Constitution and amongst the different procedures there is one which is under Article 164 (ii). It mentions “A bill to alter any of the following provisions of this Constitution…” These are the articles that are mentioned as deserving of two-thirds majority… Article 222 is mentioned. There is not mention of Article 222 (a) so as far as I understand, and I got it on good advice, Article 222 is one article, Article 222 (a) is another article and Article 222 (a) is not one of the ones mentioned here as we requiring two-thirds majority.
It is therefore very simple. Since the Government had indicated in our deliberations on the 23rd March, 2012, that they recognise the inconsistency that is reflected in the Constitution then they should do the decent thing; join us now in ensuring that the principle of independence of these very critical agencies – agencies on which our fundamental rights are based – and their standing be formally enshrined in the Constitution in accordance with the original intention of the Constitution, whatever may have happened in the course of drafting the legislation. This particular piece is very straightforward. It is merely an amendment to reflect a motion passed last year. It is also to reflect the decisions taken by way of the bill, the first bill amending the Fiscal Management and Accountability Act, which removed these very agencies from a scheduled which had turned most of them into budgetary agencies; thereby encumbering them and restricting their independence in a manner inconsistent with article 222 (a) of the Constitution and it is very simple. It ought not to be a controversial matter. I would like to urge the House to join us in ensuring that this constitutional inadequacy or the adequacy of the drafting is remedied. I thank you very much for your attention. [Applause]
Mr. Greenidge (replying): Mr. Speaker, I have listened with a great deal of sadness to the presentation of our colleague. It was also at times highly amusing. I hope you will forgive us for having interrupted so many times because at a number of points he seemed more intended to humour us that to inform us.
May I start by linking the last set of observations made by the distinguished Attorney General with that of the Hon. Member Ms. Shadick? She spoke to the question of the numbering of these articles and sought, as he did, to explain that Article 222 somehow was integrally related to 222(A) and therefore it was part of Article 222. I believe it might help if I were to do two things. First of all, to say as regards Article 222 in the version of the Constitution I am looking at there are subtitles in the margins at the left hand side. The subtitles explain the subject on the right hand side. If you look at Article 222 in the version I think everyone is using, which the Clerk has made available to us, on page 223 you will find Article 222(1) has on the left hand side the title, “Remuneration of holders of certain offices.” It has four subsections. If it were the intent of any person, whatever their names, to extend the discussion of the remuneration of holders of certain offices they would have had done it. Another subsection called 222(5) would be logical to follow from Article 222(4). It has to be obvious that a discussion of the remuneration of holders of certain offices is not the same as something termed in this constitution on the left hand side as “Overarching clause on financial autonomy.” What does the two have to do with each other? I do not understand what we are being told. These are the people that pride themselves with being distinguished members of a profession. I am sorry, I am not a member of that profession; I do not regard it as a failure on my part not to have been, but I can at least understand English. And the terminology here is clear. Nothing stopped the drafters of this document from calling the Article222 subsection 5, if it were meant to be a continuation or part thereof. If they wanted they could have called it Article 223 but if they did call it 223 there would have been consequences in terms of all the other articles having to be adjusted upwards. Clearly they were seeking to save themselves the trouble.
In these days computers facilitate most of the work. But even with a computer when one has to insert something in order to avoid the problem of the reproducing of entire documents this is the process - one adds a clause here 222(A). That is the explanation which underlies the logic of the numbering. This has nothing to do with the fact that they are of the same subject. So, please, allow us at least the intelligence for them not to be playing with us in relation to this matter.
The point is this: the issues captured here under Article 222 are issues that are separate and also severable. In other words the issues identified can be broken down into a number of elements, and one of those elements in this case cannot be the overarching issues. Article 222 (A) is specific to a new set of issues. The issue here concerns the question of the independence of the entities listed. That is what it is about. It does not have to do with the payment of the judge. It has to do with the question of independence. [Interruption] Since you raised the matter Hon. Attorney General let me just explain something to you. The issues that the Attorney General raised Mr. Speaker are really for the next Bill. The details he raised are for the next Bill. And I will show you in the next bill that he does not know what he is speaking about. He cited the distinguished Chief Justice as saying this House has no right to touch block votes, and the ERC is cited as a block vote. Mr. Speaker, I invite you again to look at Article 222(A) which makes reference to block votes and also the full Third Schedule. The Third Schedule lists a number of agencies and even where the agencies are listed as having block votes they cannot be found in the Estimates as having any block votes. The ERC is the only one of these entities which is listed as having a block vote. What is he really saying? The ERC appears in the Estimates under Subsidies to Local Organisations and it has a single figure associated with it. Article 222(A) says the entities shall be financed as a direct charge on the Consolidated Fund. It also goes on to say approved and so forth. But it is a block vote, a single sum. Where is the block vote for the DPP? Where is the block vote for the Judiciary? Where is the block vote for the Director of Public Prosecutions? There is no block vote. [Noisy Interruption]
Mr. Speaker, I have already explained to the distinguished Minister of Finance that in his own Fiscal Management and Accountability Act he lists a number of entities. The entities conflict with the provisions of the Constitution. He has to look in the Constitution to find mention of the entities that are supposed to be independent. It is with respect to their independence that they are to be treated and provided with block votes. That is the point. So I do not know how many times we have to repeat it.
Mr. Speaker, as a well known professional in the judiciary, are you aware that the DPP is part of the Judiciary? Is it or is it not a part of the Judiciary? It is an entity listed here as being independent. You have taken from your entire judicial service a judiciary but you have the DPP separate. [Interruption] Yes, but it is not treated in the same way. In other works there is no block vote for it. So that is why it is listed.
Let me also make mention of the point which the distinguished member who is not here at the moment also expanded on extensively. I in my presentation made reference to an agreement, supposedly, which was actually mentioned by Mdm. Teixeira. I had mentioned that. We went through that the last time. I will make reference to it in passing again. That reference is to a set of minutes prepared on behalf of the PPP/C side by Mdm. Teixeira and sent for the approval for the APNU side dated 30th March. It is in that set of minutes which arose out of a discussion of this very point recognising that this anomaly in the Constitution needed to be changed that the PPP/C side had said let us discuss and settle this matter within the Tripartite Committee. Here somebody is arising on the other side claiming that I had said it was the AFC and the APNU that had discussions. I said no such thing. I said the two parties that were involved in those discussions could muster a two-thirds majority and I went on to say I would assume that the third party which was not party to those discussions would have been agreeable to the changes meaning that it ought not to have problem for us. It is in those circumstances that I find it rather ironic that the PPP/C now should b seeking to deny the importance of this item and the need to modify it. All I was saying at the time is that the PPP/C fashioned one set of minutes and they sent it us for approval; we did not approve it. We sent an alternative formulation. But, yet, the PPP/C’s formulation was being suggested by the Attorney General that those were the agreed minutes. That is the point I was making. So let us not get diverted by comments which are ill informed because the member was not present at the exchanges.
May I continue by saying that we had an extensive number of comments in relation to the necessity to separate the uncertainty about finances from the standing of these constitutional bodies. In other words, if you hold them hostage to the manner in which their subventions are determined then their independence is undermined. I heard a number of sometimes quite amusing portrayals of this particular challenge. The issue I think that is of importance here is not whether the Government has had any history of devolution of power - and that is another area that can take us the rest of the night to discuss or certainly cannot be proved in the time available to us. What I want to say is that under the current framework, which is supposed to provide the Judiciary with such independence, we had a former Attorney General and a former Justice of the High Court complaining to the press that the President was using his powers to deny them payment because they were not taking decisions in keeping with his wishes. So do not come to tell us about independence of the Judiciary and that anybody is casting aspersions on the Judiciary. The aspersions have to do with the way that the Judiciary and constitutional bodies are being managed and the attempts to manipulate them to give decisions that the Government finds acceptable; both of them. So do not let us go in that direction.
Mr. Speaker: One second. Mr. Greenidge. I recall that former Justice Jainarine Singh may have written about his pension, but I am not aware of an Attorney General. Be that as it may, I would ask that you at some time in the near future provide the actual newspaper articles to which you refer because those are very strong and potentially damning statements. But I know there has been something stated in the newspapers. So I am asking you at some time in the near future to provide them please.
Mr. Nandlall: Sir, I may, in any event the Attorney General does not have to decide anything. So why would the president have anything to do withholding in terms of getting…
Mr. Speaker: He is speaking in the context of the management of the judicial architecture, if I am to borrow the word being bandied about this afternoon.
Mr. Nandlall: But he is not the Judiciary.
Mr. Speaker: Let us be very careful because these are very, very strong statements. I know something was written but I ask that sometime in the near future we could have, for the benefit of all the Members, the newspaper reports. I know something was written in the newspapers but let us not go to saying there were deliberate attempts to manipulate or… I do not know if Justice Jainarine Singh said so, I cannot recall, but we will get them later. Thank you.
Mr. Greendige: Thank you Mr. Speaker, I will most certainly find the articles. I am referring to the complaint by former Attorney Generl Doodnauth Singh and Justice Jainarine Singh and it was they who explained the reasons for the moneys being withheld. I am not providing any explanation other than the ones provided by the distinguished gentlemen themselves.
As regards the question of autonomy, I just want to remind the House once more that the Article 222(A) is, as a colleague of mine would say, pellucidly clear as regards the obligations of the Government in relation to the provisions it should make in relation to these agencies. Article 222(A) speaks to the expenditure of each of the entities being financed as a direct charge on the Consolidated Fund, determined as a lump sum, that is annually the amount in question will be shown as a lump sum and it has to be approved by the Assembly after a review of the entities annual budget. As I already pointed out – and I will leave that for the next stage.
If you turn to the Estimates you will find that these agencies are cast as budget agencies and the significance of budget agencies is as follows. If you look at Section 22(2) of the Fiscal Management and Accountability Act budgetary agents are subject to a range of requirements, and those requirements include being answerable to the Finance Secretary for all matters falling under the purview of the Finance Secretary. In other words the head of the Judiciary, the Director of Public Prosecutions, the Head of the Appellate Tribunal can be summoned and quizzed by the Finance Secretary about their work, notwithstanding the fact that the Financial Secretary’s responsibilities are supposed to be financial. It does not say not all financial matters, it says, they are subject to a range of requirements, including being answerable to the Financial Secretary for all matters falling in the purview of the person who is responsible for the agencies.
As far as I am concerned, for the office holder, that is inconsistent with the Constitutional obligation for these entities to be independent.
They placing them under the Fiscal Management and Accountability Act, again, also have this significance, it enables the Minister. The Minister may for any entity, set out in these financial estimates, except for entities associated with what are called Statutory Expenses and if anyone is unsure as to what that means, can I refer them to Page XV of the estimates themselves. At the front, in the introduction, the meaning of those terms is clear. It means that for Statutory Expenditures you cannot modify them; they do not come here for approval. Statutory Expenditures, it does not apply to anything else in the Estimates. Debt for example and a number of the items cast under the Ministry of Finance cannot be modified.
If you go to the back of the Estimates Part IV, you will see them set out in greater detail; those areas, we cannot modify. So when the Hon. Attorney General speaks to the capacity of this House, to modify anything, he must not conclude Statutory Expenditures with other expenditures because budgetary agencies are subject to the following.
The Minister of Finance receives the submission of a budgetary agency; he and his officers may modify them in accordance with any criterion set by him or his Cabinet. When the moneys have been approved, he may also not disburse them, depending upon his estimate or his view of exigencies, so he need not disburse the moneys although they have been approved. That cannot be consistent with an article that says, these agencies are supposed to be a direct charge on the Consolidated Fund, determined as a lump sum, etc after review and approval of the entity’s annual budget as part of the process of determination.
In fact, there should be a third category… [Dr. Singh: Go to the next paragraph.] I do not have a problem with the next paragraph. No one disputes the next paragraph. When we were doing the motion, just to remind the distinguish Minister, I made reference to that because you, Mr. Speaker asked, can the agency then submit any amount it wants, spend it as it likes and is not accountable to anybody. We do not have to go to the next paragraph. The next paragraph is clear, we are not seeking to amend it and so there is no need to discuss it. I am talking about the consequence of not making proper provision for Constitutional agencies, which stands between statutory bodies, statutory expenditures that cannot be touched and expenditures that are classed as budget agencies; in between the two you have a category. This House has to approve the request of the judiciary and the others that is what the Constitution says. We must therefore allow a process whereby the request is made, the House itself sees the request, approves the request or modifies it and then when it has approved it the agency must know that these are the amounts they are going to get and nobody can change it. It will be a lump sum; a single sum, determined by this House. That is all that this Act seeks to establish, so let us not be confused; let us not be misled; let us not be told that it is doing anything other than that.
Constitutionally, we are required to deal and make provision for a special category. The current arrangements do not make such provision. We are calling upon the House to do what the Minister was instructed to do by the motions we passed last year. We would not have had any need to come back to this and waste the House’s time tonight if he had done his job. Thank you, Mr. Speaker.
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