The Constitution (Amendment) Bill 20133683 14 Feb, 2013
Mr. B. Williams: This is a simple matter and I rise to support the Hon. Member Mr. Carl Greenidge’s proposal to amend this provision to the Schedule in the article 222A by this Bill. It is a simple factual matrix that is involved. Article 222A came some time after article 222, but let me ab initio show that before article 222A the architecture in our Constitution was that certain Service Commissions, for example, and other offices were to be independent.
Let us start with the Service Commissions, in article 198, which include the Judicial Services Commission – obviously that has to be independent - Public Service Commission, Teaching Service Commission, Police Service Commission and the Elections Commissions also entered the fray. What were the mechanisms in the Constitution to guarantee that independence? One was referred to by the Hon. Member Ms. Bibi Shadick dealing with the salaries. Obviously if we want to have judges secure we will have to, more or less, insulate their salaries from interference by the executive. Then the method of appointment overarching will determine independence. If a judge could be appointed in Robb Street then, as you know, there would be no independence. That is why there is the Judicial Services Commission. If a judge were to be appointed at Office of the President, it equally would be the same thing.
In article 226 (1):
“Save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a Commission shall not be subject to the direction or control of any other person or authority.”
A clear statement, than this, cannot be wanted. It is telling clearly that the Commissions are independent. Now, which are these Commissions? Let us go to article 226 (7) and it states this:
“In this article, except as otherwise provided or required by the context, the expression “Commission” means the Elections Commissions, the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission or the Police Service Commission…”
This is the state of play which had been obtained in Guyana.
In terms of evolution in the courts, it was felt that decisions of these Commissions ought not to be justiciable in court and, as you know, how the law evolved over time in the case of Evelyn coming down the line. The judiciary said no and that it should be able to review the decisions if they are not made judiciously or if they are made arbitrarily, but the fundamental underpinning was these bodies were to be independent.
What happened? Article 222A happened. What was article 222A? It was not a mistake, Hon. Member Ms. Shadick. It did not just happen like that. Your own Government does not make mistakes such as that. The Third Schedule suddenly appeared by virtue of 222A. Hear what it tells us: “In order to assure the independence of the entities listed in the Third Schedule…” In other words, I just read article 226. Article 198 and the other article, referred to by the Hon. Member Ms. Shadick, spoke of the independence. Now there is article 222A saying to us that in order to guarantee or in order to confirm the independence it is to look to the Schedule and the body which is listed in it. Lo and behold, what is there, in the schedule, is the latest Commission in this country – the Rights Commission.
What does that mean? Exclusio alterius. If one is saying that one is assured that those are the bodies, which are independent under our Constitution, and does not include those hitherto guaranteed in article 198 and confirmed by article 226 (1) and (7), what are we doing? One might have said, at that time, that it must have been a mistake. Yes, but then, lo and behold, there is some Act called the Fiscal Management and Accountability Act which surfaced. What did one find? It was another Schedule being introduced. What did you find? The entities that were missing from the Third Schedule in the Constitution suddenly appeared in the Schedule of this ordinary piece of legislation though, in parenthesis, I would say an extraordinary piece of legislation.
When all of those Commissions were taken and made into budget agencies then we knew that it was not an error or mistake. We were then reinforced in the view when the Hon. Member Ramjattan confirmed, when he coined that phrase – what is the phrase? - control freakism. I personally encountered it in dealing with the elections of 2006 with Guyana Elections Commission (GECOM) because suddenly the honourable gentleman, Dr. Luncheon, was suddenly the person who had to be looked to get money for GECOM. There were elections afoot; there were scrutineers to be paid, things had to be bought and at that time we are dealing with biometrics. All of those things were being introduced and everything was dependent on the money coming from the budget agency head who happened to be Dr. Luncheon. I do know how the independence of GECOM would be guaranteed when we had to look to the piper by the name of Dr. Luncheon. It was a mockery of the guarantee of independence contemplated by the builders of this Constitution who erected that architecture. What it turned out to be was that the Head of the Presidential Secretariat (HPS) could have directed spending on line items. If material is needed to get photographs taken and if it would not be in a hurry no money would be forthcoming. The Government was not releasing the moneys, so we had encountered all of that.
Now there is the Public Service Commission, Police Service Commission, the Judicial Service Commission, for sure the separation of powers, in context, speaks of assuring the independence of the three separate arms of the State so we must guard jealously and zealously the independence of the judiciary. How that is done when it is subjected to a budget agency? It is not include it in the Third Schedule, so we knew for sure that it was not an accident. [Mr. Nandlall: The judiciary is there. Every part of your speech is…] When you were speaking just now you were speaking after me too. You will finally get to speak after me. [Mr. Nandlall: The judiciary is on the Schedule.] We are talking about the Judicial Service Commission. The method of appointing a judge must be relevant to his or her independence. Is it there? It is not. The Hon. Member Madam Shadick also said that this cannot be amended by a simple majority.
Article 164, which deals with altering the Constitution, paragraph (1) speaks of a simple majority; paragraph (2) (a) speaks of a referendum and paragraph (2) (b) speaks of a two-third majority.
Let us see. Look at paragraph (2) (a) and see whether article 222A occurs there; it does not. Look at paragraph (2) (b) and see if it occurs there also – article 222A? It does not. Article 222 is there but article 222A is not there. What it means is that if any article in our Constitution is not included in article 164 (2) (a) or (b) then it could be altered by a simple majority. I do not know what the argument is. One can only look to the provision… [Mr. Nandlall: […inaudible]] I do not know about the recent Attorney General who does not have the weight of years in our profession to really be making that kind of noise, but he must listen. I do know why he is trying to interrupt me. He does not have the calibre to interrupt me.
I am saying that if it is not in here then it has to be altered by a simple majority. As the saying goes in the law, “not even the devil knoweth what is in a man’s mind”, in the Constitution, for us to know what is in the mind, it must be manifested. It is a simple thing. A Member cannot come to this honourable House, a House that has been hallowed by time…Look at that giant of a silk that is looking at you. He must be turning in his grave to hear how you are mangling this Constitution and you continue with that - you, without the weight of years. Let me say to you… [Mr. Nandlall: Ignorance is bliss, my brother.] We could go all day, as you know. I do not know why you do not sit quietly and learn.
It was not by any error that the Government is showing the independence of entities in the Constitution and it left out those original entities and bodies and institutions that were originally guaranteed, and not only in the 1980 Constitution, but in the independence Constitution and throughout the Caribbean where there are Westminster type models of Constitution. Those Service Commissions have always been independent and insulated from the murky hands of the executives.
I reiterate that the amendments, which are being proposed and inclusions to the Third Schedule of the Constitution, are well put. The Director of Public Prosecutions (DPP) is guaranteed to be independent. The DPP is not subject to the direction to control of any person, including the Attorney General of this country. He cannot tell the DPP what to do. The DPP is the only agency who can institute proceedings in this country in criminal matters and could stop them and the Attorney General cannot interfere with that process.
How does the Attorney General interfere? If the chamber needs amenities, if the chamber needs other things, there is the arrangement that the Minister of Legal Affairs would be the person to speak in the National Assembly in relation to those things, but that Minister, in doing that Act, should not be able to influence the minds of a judge or the DPP. Therefore we are saying, in the words of the Constitution, itself, article 222(A), this: “In order to assure the independence of the entities listed in the Third Schedule…” which includes the Director of Public Prosecutions, the Judicial Service Commission, the Public Service Commission, the Police Service Commission, the Teaching Service Commission, the Public Service Appellate Tribunal, Public Procurement Commission, Office of the Ombudsman and the Guyana Elections Commission, that we have to amend the provision and the Schedule to make these inclusions. I am in total favour and agreement in doing so.
I support this Bill brought by the Hon. Member Mr. Carl Greenidge.
Thank you Mdm. Deputy Speaker. [Applause]
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