Inducement for National Assembly vote Legal or illegal?
Dec 30, 2018 , By Abena Rockcliffe-Campbell, Kaieteur News, https://www.kaieteurnewsonline...te-legal-or-illegal/
What does the law say?
Two weeks back in Guyana’s history, the name Charrandass Persaud was no household one. As a backbencher in the National Assembly, Persaud was not even considered to be one of the better known politicians.
But all of that changed when he voted against his own government and with the People’s Progressive Party Opposition on a Bharrat Jagdeo-sponsored No-Confidence Motion.
That vote was made on December 21, last. Today, the smallest child knows the name “Charrandass.”
Everywhere and every day, “Charrandass” is the conversation. One of the popular speculations highlighted in many of these conversations is the possibility that Persaud might have taken money to vote the way he did.
Speculation heightened when the People’s National Congress Reform (PNCR) said that it is gathering evidence to prove “bribery” and will be making a police report.
The logical spin off from that speculation is whether such an occurrence is illegal. Yesterday, two attorneys at law weighed in on the matter, presenting different legal opinions.
LEGAL
Attorney at Law, Roysdale Forde
Sanjeev Datadin’s opinion is that such an act is not bribery and cannot be considered illegal. Datadin was firm in his opinion.
He said, “There is no criminal offence and there could be no criminal charge because under the statute (Criminal Law Offences Act), the meaning of public official does not apply to a parliamentarian.
He said that whether a parliamentarian can be bribed is distinct from whether a politician can be bribed.
Datadin said that bribing a parliamentarian was looked at in England repeatedly.
He said, “In the 1969 Salmond Report, it was concluded that it is not an offence to give money to a parliamentarian. There is no offence at common law or statute. Parliamentarians were not public officials within the meaning of the criminal statutes.”
Datadin said that it would be more of a lobby. He said that lobbying is not illegal.
Datadin noted that lobbyists in the United Kingdom and the United States are allowed to pay a parliamentarian to put a bill.
Datadin said that there have been cases where British Members of Parliament were paid £1000 to take a Bill to the floor of the House of Commons.
However, he said that in the United States, one has to register as a lobbyist and the money paid has to be declared.
The Lawyer said, “These (UK and US) are two very sophisticated legal systems. Those systems have proper offices and are able to track and trace. We have a primitive tax system. We basically earn by taxing the ports…we do not do anything about what is generated within.”
He continued, “Under our law, whether or not an MP was paid is not illegal”
Further, Datadin said that even if it were illegal, it may be almost impossible to establish that a bribe was passed.
Datadin also lent his opinion that government officials are blowing hot air. He said that he noted comments in the press attributed to Prime Minister, Moses Nagamootoo and PNCR Official Aubrey Norton to the effect that a bribe was passed.
“I read that they have all this proof, but they are not saying anything.”
Datadin said, “I have no doubt in my mind that if there was any irrefutable evidence, it would have been out in the public domain front and center; it would have been everywhere.”
Datadin said, “The assertions are made up of nebulous hearsay, working on people’s imaginations.
ILLEGAL
Roysdale Forde is resolute in his opinion that any payment to a public official for a particular act, other than in the manner in which the servant is suppose to act, is a bribe. He also believes that a Member of Parliament is in fact a public servant.
Forde said, “If monies were paid to him to vote, it would be Common-Law Bribery and would constitute contempt of the National Assembly.”
Forde said that while contempt of the National Assembly is merely a parliamentary offence, Common Law Bribery is a criminal offence.
Just as did Datadin, Forde said that lobbying is not an offence. But, Forde was keen to note that paying a Member of Parliament to act in a particular way cannot be considered lobbying.
“Just think about it, he is there to perform a particular function. To receive money as an incentive to do something is not lobbying…lobbying is done with the expectation and hope that you may. But with bribery you are taking money to effect a particular outcome.”
Forde cited the Criminal Law Offences Act. The same Act cited by Datadin.
However, Forde focused under “Bribery and corruption.” He said that that sections state, “Public servant denotes a person “falling under any of the following descriptions namely; Every person, other than a person falling under any of the descriptions in the preceding subparagraphs who holds an office listed in schedule 1 of the Integrity Commission Act.”
Schedule 1 of the Integrity Commission Act lists, under specified offices, Members of the National Assembly, as public servants; it is the sixth specification. That schedule also specifies the Clerk and the Speaker of the National Assembly and Public Servants.
After establishing that a Member of Parliament is indeed a Public Servant, Forde went on to cite 336 of the Criminal Law Offences Act which states, “Everyone who accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other persons any gratification whatever pecuniary or otherwise a motive or reward for inducing by the exercise of personal influence any public servant to do or to forebear to do any official act or in the exercise of his official functions to show favor or disfavor to any person or to render or attempt to render any service or disservice to any person with the National Assembly, or the executive government of Guyana, or with any public servant, as a public servant, shall be guilty of a misdemeanor and liable to imprisonment for one year.”
He further quoted 337 (1) which states that every person who, being a public servant in respect of who either of the offences define in the last two preceding section is committed, abets the offence, shall be guilty of a misdemeanor and liable to imprisonment for three years.
He also cited precedence around the world, particularly India where payments in such regards are considered illegal.
The Supreme Court of India examined a case where money was paid for votes in a No-Confidence Motion as well.
Read that case here: http://www.liiofindia.org/cgi-...te%20of%20confidence.
