AG warns… : Parliament will continue to have problems : --until the opposition recognise their limitations

Written by, Saturday, 11 May 2013 22:20, Source

THE BILLS which were recently vetoed by President Donald Ramotar reflect a lack of understanding of two main principles: The doctrine of constitutional supremacy, and the doctrine of separation of powers. And this lack of understanding, says Attorney-General, Mr Anil Nandlall, is evidenced in the political opposition’s continuing to bring before Parliament, Bills that are offensive to the Constitution.

Nandlall, who is also Legal Affairs Minister, made the forgoing observation during a recent programme hosted by the National Communications Network (NCN).
Noting that the Constitution is the supreme law of the land, and that any other that is not in consonance with said statute is void, Nandlall further said that every piece of legislation that is passed must meet that constitutional litmus test, failing which it is unconstitutional, null and void to the extent that it collides with the constitution.

The second principle clearly defines the roles of the three arms of government, the Executive, the Legislature and the Judiciary. These must discharge their respective responsibilities, Minister Nandlall said, independent of each other, and more fundamentally in the discharge of those responsibilities they must not encroach upon the province of each other. “It is this separation of functions which is called the doctrine of separation of powers, and that is doctrine which is built into our constitution.”
 
Executive responsibility
Minister Nandlall further explained that, with regards to the Fiscal Management and Accountability Amendment (FMAA) Bill recently debated in the National Assembly, the financial responsibility of the state is a set of tasks which the constitution resides in the Executive, and therefore only this arm can perform those types of functions. He said that among the financial responsibilities which devolve upon the Executive under the constitution, is the responsibility to prepare and present to the National Assembly which is part of the Legislature, the estimates for the country for a given financial year.

In the Executive, that power is resided in the president who has delegated it to the Minister of Finance. “What the FMAA, the amendment which was piloted through the parliament, through the last sitting seeks to do, is to take away from the Minister of Finance the power of preparation and presentation of the estimates for certain agencies, and to reside them in two functionaries in the Legislature, the Clerk of the National Assembly, and the chairman of the public accounts committee. These agencies are the constitutional commissions, the Judiciary and the Director of Public Prosecutions. This bill seeks to repose the responsibilities for presentation of estimates of these agencies to the Clerk of the National Assembly and away from the Minister of Finance. In relation to the Auditor General’s budget, it seeks to take it away from the Finance Minister and give it the Chairman of the Finance Committee. This is a violation of the separation doctrine,” the AG stated.  
 
Violation of separation of powers
The Minister stated emphatically, that all these agencies’ budgets are presented as part of the National estimates of Guyana and article 218 of the constitution says very clearly that the presentation of those estimates must be done by the Finance Minister. Importantly it is an Executive responsibility, he said.

“Applying now the doctrine of separation of powers, you find that that doctrine now is being abrogated because an Executive function is being seized from the Executive, and is being transferred to the Legislature. Now that is in violation of that doctrine of separation of powers.

Secondly the literal language of the constitution actually says that it is the Minister of Finance who must prepare the estimates, and must present these estimates to the National Assembly. This bill resides that responsibility in the legislature, so again you have a conflict, this time with the literal language of the constitution. Applying the doctrine of separation of powers you find that it is abrogated, and secondly applying the doctrine of constitutional supremacy you find that this bill collides with the constitution, and it is therefore unconstitutional under both doctrines.”

He said, “That is the major problem with this Bill that was piloted through the National Assembly. But it is a little more than that,  what I find mesmerising is that lawyers that are in the parliament on the opposition bench must know the inherent flaws which afflict this bill, and all the other Bills which I’ll speak about later which have emanated from the opposition.”
 
Three budgets  
The issues can result in practical difficulties, according to Minister Nandlall as now, for the first time in this part of the world three budgets would be presented; one by the Executive, one by the Clerk of the National Assembly, and one by Mr. Greenidge himself who happens to be the Chairman of the Public Accounts Committee. The minister said that he has challenged the parliamentary opposition to cite a single country where this situation obtains and he will withdraw all objections, but none can be cited.

“We will have the difficulty…the Executive would be left  responsible for the financial management of the state, in relation to these agencies which have been taken away from the executive, but the executive now have no supervisory, no responsibility, control or interaction in the financial affairs of these agencies, so the Executive is now left with the burden of a responsibility without the benefit of any form of supervisory control, or interaction in any form or fashion in relation to these agencies. So you have responsibilities for something you have absolutely no connection with and no control over that is a bizarre state of affairs”.

The question of who will answer for these agencies to the Committee of Supply will also present a challenge. “Certainly it can’t be the Executive, we have been removed from the financial equation, so I don’t know the head of these agencies I suppose would have to come, and I suppose they would have to be sworn in as members of parliament because they are not members of parliament”.

“Half baked” was how Minister Nandlall described the legislation that doesn’t deal with a whole host of eventualities that will be triggered if it is made into law. 
The Legal Affairs Minister added that while this amendment seeks to advance the cause of transparency and accountability in respect of the expenditure of public funds, and these are principles and concepts to which government is absolutely committed, however the proper framework to advance this cause must be done in a constitutionally legal manner. “If you assume that which exist is not satisfactory, then you have to do it in the legally correct way without offending the laws, without offending responsibilities, and without offending the constitution of the land.”

President Donald Ramotar recently vetoed the opposition piloted  FMAA Bill and the Former President’s (Facilities and Other Benefits) Bill, that were sent to him for approval.

President Ramotar stated that the two bills were in violation of the Constitution. He said that the Fiscal Management and Accountability Bill was in violation of Article 171(2) in that it could not be introduced by a private member, but rather only with the consent of the Cabinet “signified by a Minister.”

Further, the president noted that the Act stipulates that the Minister may, by order, amend the Schedule and that it was therefore wrong to do so by an Act of Parliament. The bill passed by the House sought to remove several entities listed as budget agencies under the Act in order to have them draw directly from the Consolidated Fund as constitutional entities. His final assertion to concretise his withheld assent was, “In my opinion, the Bill is violative of the Constitution and by virtue of Article 8 of the Constitution is unconstitutional, null, void, and of no effect, pro tanto.”

President Ramotar also noted that by virtue of article eight of the Former President’s Benefits and other Facilities Bill 2012, Bill Number 29 of 2012 presented to his offices on May 3, 2013, was in violation of the Constitution. According to the president, the bill takes away vested rights and it is a denial of legitimate expectation and violation of article 142(1), which prohibits the taking away of property compulsorily without the prompt payment of compensation.

It was stated that the tern “natural children” used in the bill is a clear violation of the status of the Children Act 2009. The bill also stated that if the former president engages in business, trade or paid employment that there will cease to be entitlement to the benefits, and such clause will violate the president’s constitutional right to work under Article 149A.

The said bill also stated under clause four that if the former president is cited by any court for criminal offence, there shall be ceased of entitled benefits and this is also a violation of the presumption of innocence, which is guaranteed as a fundamental right by Article 144 of the Constitution. (A GINA feature)