Fiscal Management and Accountability (AMT) Bill 20122362 17 Dec, 2012
Minister of Finance [Dr. Singh]: Mr. Speaker, I rise to speak to the motion moved by the Hon. Member, Mr. Carl Greenidge on the matter of his proposed introduction of an amendment to the Fiscal Management and Accountability Act, 2003; a 2012 Amendment, of course, to the original principle enactment of 2003.
Like you indicated, Sir, in your remarks just delivered, the bill seeks to remove from the schedule to the Fiscal Management and Accountability Act certain listed entities. I wish to submit, Sir, that the bill, not withstanding its apparent simplicity is in fact fundamentally flawed for a number of reasons which I will outline briefly and on the basis of which I will ask that this Assembly not grant leave for the bill to be proceeded with.
Firstly, Mr. Speaker, I wish, with your permission and paying due deference to your good self, Sir, and without any intensions of repeating arguments made earlier, I wish to refer to the ruling you delivered earlier today and the observations made by the Hon. Attorney General and would like, with the greatest of respect, and as I said paying appropriate deference to your office and to your superior legal learning in these matters, urge you to reconsider the matter of your interpretation of Article 171 (2) of the Constitution.
That article, to my layperson’s eyes says that this National Assembly shall not proceed upon any bill, including an amendment to a bill, which in the opinion of your good self, makes provision for any of the following purposes, unless that bill or amendment to a bill comes to this National Assembly with the prior consent of the Cabinet, signified by a Minister. Included amongst those matters is the imposition of any charge upon the Consolidated Fund or for altering any such charge otherwise than reducing it; the Attorney General, in fact, read this very subparagraph of this article. Article 171 (2) (a) (iii) says further that amongst these matters would be any matter that would have the purpose of or the consequence of payment issuance withdrawal from the Consolidated Fund of any monies not charged there on for increase in the amount of any such payment, issue, withdrawal, etcetera. There are a number of other matters listed.
The Standing Orders which govern our proceedings in this august Assembly in fact replicate the very constitutional article. Standing Order No. 25 attaches to the right of a Member to introduce a bill or propose a motion. Standing Order No. 25 attaches a proviso which replicates the provisions of Article 171 including, in particular…
Mr. Speaker: 25?
Dr. Singh: 25 (1), Sir. It says very clearly in the proviso:
“The National Assembly shall not, except on the recommendation or with the consent of the Cabinet signified by a Minister, proceed upon any Bill or an amendment to a Bill which in the opinion [of your good self, Sir] makes provision [for the same matters that were listed in the Constitution].”
Mr. Speaker: 25 (2)?
Dr. Singh: 25 (1). In fact 25 (2) goes on to stipulate: “The signification of the recommendation of the consent of Cabinet shall be recorded in the Minutes of Proceedings.” For this reason it would be recalled that on brining any financial matter to this National Assembly it is customary that I, as Minister of Finance or whoever else is presenting the matter on my behalf or in my stead or on behalf of the Government, would signify the consent of Cabinet to proceed with the matter concerned. In fact this, since time immemorial, has been the language contained in the first paragraph of the Budget Speech and it has been the signification that is tendered before consideration of any financial paper or any financial bill.
Mr. Speaker, on those grounds, like I said, and with the greatest of respect to you, I would urge you to reconsider broadly your interpretation of this particular article and specifically the matter of the admissibility of this amendment Bill on the grounds that it is clear that to the extent that this Bill purports – I am doubtful that it does actually have that consequence, but that is a different matter – to put in place measures that will govern the provision of funding to any of these entities, then, in fact, its consideration must be preceded by and premised upon the consent of Cabinet and formal signification thereof. Surely if the argument is that this Bill will have the effect of putting in place some arrangements whereby these entities will have access to public finances, be able to draw on the Consolidated Fund, be able to incur public expenditure under whatever mechanism, then this Bill will fall within the ambit of article 171 of the Constitution and Standing Order 25.
I would go further and say that the Bill also contains a number of other - at least a couple of other - immediately observable deficiencies not least amongst which it seeks to remove from the Schedule entities that are, in fact, not in the Schedule. For example, it lists the Judicial Service Commission which, in fact, is not a budget agency and is not listed in the Schedule. Surely that must be deemed to be a most fundamental flaw. It would seem reasonably evident that one cannot remove from a Schedule something that is not there in the first instance.
Furthermore, if the intention of the Bill is to somehow give service or effect to article 222A of the Constitution that speaks to certain entities in the Third Schedule - it would be recalled that the Third Schedule lists a number of entities that are the subject of article 222A - then one surely could not arbitrarily select entities or additional entities for inclusion in this list. The Constitution is very clear; it accords a certain treatment within the same article 222A to a finite list of entities named specifically in the Third Schedule to the Constitution.
I submit to you, Sir, that the entities listed in this amendment Bill, in fact, do not coincide identically with the Third Schedule entities and it is not clear at all the basis on which these entities were identified and others omitted because if the intention is to demonstrate some faithfulness to the Constitution, then surely the Bill would be faithful in replicating the entities listed in the Third Schedule and not arbitrarily list a motley crew of entities and arbitrarily omit others that are specifically named in the Third Schedule. I therefore suggest that the intention could surely not be any measure of faithfulness to article 222A, otherwise the entities named would have been those named in the said article and its derivative Schedule.
Finally, Sir, as you pointed out with your customary acuity, the Bill, in fact, removes from the Schedule entities which would be governed by the provisions for making financial allocations to these entities but makes no alternative legislative stipulations as it relates to the finances of these entities. I believe, Sir, this was the basis for your own reservations, if I understood them correctly. Before I come to if we are going to remove..., the Schedule to the Fiscal Management and Accountability Act (FMAA) names budget agencies and it then prescribes a very elaborate architecture governing the financial management arrangements that will apply to these entities. By removing these entities and not articulating an alternative set of arrangements to govern their financial management and provision of financial allocations, etcetera, these entities are effectively left in no man’s land. I agree entirely with the reservation that you have. As I said, that reservation was most appropriately, Sir, identified by your good self and I concur entirely with it because we would be left, were we to proceed with this enactment, with a situation where these entities would literally be standing on the proverbial saying of no man’s land with no statutory or legislative provisions to stipulate how they are to be provided with finances.
I would submit, on those bases, that the Bill is so fundamentally flawed that it should not be proceeded with by this honourable House and, indeed, were you, Sir, to be favourably and graciously inclined to revisit the matter of your interpretation of article 171 (2) and Standing Order 25, I would submit that the Bill is more than flawed. It, in fact, collides with the Constitution and that Standing Order.
With those remarks, I urge this honourable House to invite the Hon. Member to withdraw the Bill and reconsider its contents and perhaps at some future date, return to the House with something that is not as replete with flaws as the current Bill is before us.
I thank you very much Sir. [Applause]
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