May 07, 2013 - The Fiscal Management And Accountability (Amendment) Bill 20132431 07 May, 2013
May 07, 2013 - THE FISCAL MANAGEMENT AND ACCOUNTABILITY (AMENDMENT) BILL 2013
Dr. Roopnarine: Let me begin by agreeing, at once, with the Hon. Bishop Edghill, who spoke on this matter, when he said that financial independence, important though it is, perhaps is not the only thing to be guarded against. I wish to agree with him. That is why, notwithstanding all of the other precautions we take to ensure the autonomy of these agencies, we do believe, however, that we can take all of these precautions to ensure autonomy, but if we do not ensure financial autonomy then all the other work may well be in vain. This is the first point I wish to make.
It was, however, my friend, the Hon. Attorney General, who provided us with a great deal of entertainment on this Bill. I will not speak on the issue which seems to have tormented him at the beginning, namely the reality of the Tenth Parliament and how it is made to work. I have no doubt, myself, that because of the insistence is from this side, in relation to accountability and transparency, we are on a regular basis being provided with annual audited reports, and so on. I think that it is fair to say at no time before the Tenth Parliament has there been such a deluge of audited reports, and we thank the Hon. Minister.
I wish also to say that, in relation to the extant legislation, the Hon. Attorney General made much of the fact that the Principal Act was adverbial in our ways. I prefer, myself, to go back the introduction of the idea of the comprehensiveness of the Principal Act by the words used by the Hon. Minister of Finance in January of 2013. When speaking on the issue of the Fiscal Management and Accountability Act 2012, he had this to say, referring to a number of the Acts that were brought in this period, including the Audit Act, the Procurement Act of 2003 and so on.
“These are not one-off isolated ventures of Parliament, there was a systematic well coordinated carefully crafted endeavour to modernise the architecture governing the management of public finances.”
He also went on to name the Acts. He said:
“Following the 2001 amendments we return to Parliament with the modern procurement legislation in 2003, a modern Act for the public finances, what is called the industry an organic budget law, the Fiscal Management and Accountability Act and an Audit Act early in 2004. Throughout all of this, the House, acting in unison, recognised the merits of these interventions.”
I now wish to say, and go on record as saying, that, in effect, the financial architectures to guarantee fiscal accountability, and so on, which have been crafted and presented to this House, are adverbial as they stand. I have no quarrel with making such an assertion.
However to say that they are admirable and have transformed the financial architecture is not to grant them a status of chronic immutability. It does not mean that they are not capable of further refinement. We should not treat them as though they were tabulis brought from Mount Sinai, or anything like that.
I wish to also say that one of the issues raised by the Hon. Minister of Finance, and we were discussing at the time the issue of article 222A the Third Schedule,... In effect, the Minister of Finance, at the time, made reference to article 154. I wonder if I can crave your indulgence, Mr. Speaker, to say a bit about that. It was said then that all of the newly inserted articles..., the articles that followed from the Constitution Reform Commission’s recommendations and Commissions, and so on, have a new numbering scheme. As we know, there is now articles 212A, 212B and 212C. He said:
“All of these newly inserted articles that have this new numbering scheme with letter appended to them, to avoid renumbering of subsequent articles, none of them appear in article 164.”
He goes on to say that:
“It could not have been the intention to have all of these newly inserted articles. It cannot be that we amend then by a simple majority, and so on.”
I want to assure the Hon. Minister of Finance that in fact all of the articles, which have this alphabetical listing, are captured in article 164. What had happened was that we found that articles 138 to 154 were all captured within article 164. Between articles 138 and 154, there are a number of articles that carry alphabetical listings. These would include the articles 149A to 149J, all of which deal with rights provisions. I just want to find myself in the unusual position of perhaps correcting the Hon. Minister of Finance to say that the articles, which he refers to, carrying the alphabetical listing, are in fact captured in article 164, without stating them in that way.
The fact of the matter is that had the drafters, if they had wanted, I think, to have article 222A enjoys the entrenchment of the other articles, since they could not have interfered with article 164,... This is the important point. Article164 cannot be tampered with. Article 164 states very clearly that: “A Bill to alter any of the following provisions of the Constitution, that is to say - (a) this article...”, this is article 164, and then article 128, and so on, dealing with territory the name of the country. In the Constitutional Reform Commission we had made a recommendation that the name of the country be changed from the Co-operative Republic of Guyana to the Republic of Guyana but, of course, that cannot be implemented without a referendum. The point about these particular articles listed in article 164(a) is that to alter them there will be the need for a referendum, and that includes article 164, itself. If they had wanted to entrench article 222A one of the things they could actually have done was simply to create a new paragraph 4 of article 222 which would have done the same thing.
Article 222, as it is known, is entrenched because it covers emoluments and salaries, and so on. If they had wanted to entrench the Third Schedule of article 222A they could have simply created a paragraph 4. I see the Member is nodding I know could answer when the Member’s time comes. As it presently stands, I see nowhere of arguing against the fact article 222(A) can be altered by a simple majority. I suspect actually that it is not so inadvertent or some mistake that they made that they forgot about it. I do believe it was left precisely like that so that we could address the Third Schedule if we needed to.
I want to say also that the Third Schedule we know was not inviolable because the Office of the Auditor General was once removed and replaced. It was once migrated to the Fiscal Management and Accountability (FMA) Act I believe, then it was subsequently resettled where it belongs.
I want to touch on a couple of other things that were raised by the Attorney General. I must say that in the Hon. Attorney General presentation I have heard no better advocacy for the establishment of a legal department of the National Assembly. He made the point that what the Bill before us suffers from is that there are technical difficulties; there are in fact imperfections. I happen to know that from my own experience of the Chief Parliamentary Counsel (CPC) and his team. They have been gracing us with their presence on the Special Select Committee on the Guyana Cricket Administration Bill 2012. Even with a properly prepared Bill, which came before the Committee, the CPC and the representatives of that office had to refine that Bill, making it better, as we went along. Drafting is a highly developed art and we are not to behave as thought Bills come to us as perfect as they stand. But as I said, there is the argument for the establishment of a legal department so that we would not run the risk of coming to the National Assembly and have Bills accused of being travesty and mediocrity, and so on.
The Hon. Attorney General had been loud in praise of the ideals of the Bill. We thank him for that because we do believe that the intentions of the Bill are not intentions with which the Opposite side can possibly disagree or separate itself from. Much to my astonishment, the Attorney General spent a great deal of time arguing that there is no nexus between this amendment Bill and the Principal Act. He then went on to make a very curious argument that the reason this is so is because Mr. Greenidge, in a previous Bill, had removed these entities from the schedule. This Bill of Mr. Greenidge, I understand, is a Bill yet to be assented to. In effect, what we were hearing from the Hon. Attorney General was that he was treating as extant the legislation, which has not been assented to without explanation to this House. I believe that the Hon. Attorney General seems to be one of those poor people locked Plato’s cave dealing with the shadows flickering on the walls rather than with reality itself, because the amendment does have a connection with the extant legislation. What it may not have a connection to is the legislation which is yet to come back to this House assented to by His Excellency, or at least an explanation to the Speaker as to why His Excellency is withholding his assent. None of that has so far happened. I think that is it, in fact to be fencing with shadows to make this particular argument.
On the 13th of June, last year we had a debate on the Constitutional Commissions and in the course of that debate I had sought to make the argument that the financial autonomy of the Commissions was of great importance. I had, at the time pointed..., and again this is something which I believe the Hon. Attorney General would approve of great, since I know he is a great student and devotee of the Constitution of India, which in Article 322 states quite categorically:
“The expenses of the union or a State Public Service Commission, including any salaries, allowances, and pensions payable to in respect of the Members of staff of the commission, shall be charged on the Consolidated Fund of India or as the case may be the Consolidated Fund of the State.”
I had at the time also drawn attention to the point that was made by Professor James, in his book on the Constitution of Guyana, where speaking on the issue of funding, he had this to say:
“The over reliance of these offices, on the executive for financial resources, is thought to be one of the stumbling blocks to their effectiveness. The concept of a constitutional office implies adequate funding in order to carry out constitutional functions and one might extends the Chief Justice Harold Thally’s warnings of a dependent judiciary to these institutions. There is a need, therefore, to enforce the constitutional requirements on funding. Although, notion of an action against the state for adequate funding bristles with difficulties it makes sense particularly where the appropriate Minister could out, out peak of the office, refuse to discharge his duties towards it because of an insistence on independence and autonomy by the office holders. The possibility of such an action would go somewhere to guarantee the independence of these offices. The current state of affairs is that they are total dependence on the government for the material and human resources impacts negatively on their independence.”
I believe that we have heard from the other side, and I think Members on the other side have really made very heavy whether of the issue of who reports matters to the National Assembly, how it is done. There was much hilarity in relation to whether it is the Clerk making the presentation or Mr. Greenidge, as the Chairman of the Public Accounts Committee, making the presentation. The point about it is that what we want to assert is the fact that these constitutional agencies should be free of executive control.
We spent a great deal of time in the Constitutional Reform Commission when we established the plethora of commissions - heaven knows if we have enough of them - and when we enhanced the powers of the National Assembly by establishing the Standing Committees, the Sector Committees, what we were attempting to do, in the words of the final report of the oversight committee, was that we attempted to shift the centre of gravity of governmental power away from the executive and towards the National Assembly. That was what we were doing. When we established the commissions we were very careful to establish many mechanisms to enhance and to guarantee their autonomy and their independence. That is why one of the things that we did was to establish the appointive committee, and through the appointive committee the various commissions would be populated. That was how we saw it was supposed to be happening. The reason for all of that was, as I said, to shift the centre of gravity of governmental power away from the executive and towards the National Assembly and towards the suite of Commissions. This was what we were attempting to do.
To my mind, for us to indulge in essentially what is a retreat from this position and to attempt to now compromise the independence and autonomy of the institutions by reducing them to budget agencies... I had said, at the time, that reducing the constitutional agencies to budget agencies was to turn giants into dwarfs because we were tearing down what are, to my mind, strong pillars of our democracy, namely the autonomous independent commissions and the other efforts in the relation to enhancing the National Assembly, that nothing should be done that interferes with this consolidation of these institutions that are there to act as a check on executive power.
We have heard a great deal. I want to say that much of what we have heard, one of them had to do with, what the Hon. Bishop called, the problem of balancing - how do we balance the issues of autonomy and the issues of, if it is liked, accountability? Who is to be accountable in these agencies, and so on? I have no doubts that these are refinements in which we have to work. I, myself, believe that it is not beyond the Tenth Parliament, notwithstanding its confrontational nature, from time to time, across this House, to be able to device mechanisms that would restore a proper balance. We are not saying that we want these agencies to run riot and to come and present us with impossible demands, and that kind of thing. They have must, as the Hon. Minister of Finance has, himself, said, be subjective to financial scrutiny. We have to ensure that what they are asking for is not improbable. We also have to ensure that they have the machinery to administer these funds once we allocate them. All of these things need to be in place. I have no doubt that among us we can device the mechanisms to do this, because it is important that we should not sacrifice the autonomy of these institutions by the argument that what we need is the accountability and the control of these finances by these institutions.
The fact that there are, at the moment, institutions such as the service commissions, and so on, my own feeling is that all of these commissions in their present condition need serious examination. I am very happy that I have received an invitation from the Chairperson of Parliamentary Standing Committee for Constitutional Reform that the Standing Committee is about to meet. We know that part of the function of the Parliamentary Standing Committee for Constitutional Reform is precisely to provide some oversight over in the commissions. My own hope is that we are going to be looking at commissions very carefully because I do not think that any of us in this House can be very happy with the present state of the service commissions. Those need to be looked at and we need to do it, I believe, very quickly.
I do not intend to say much more, but it is simply to say that in relation to what we are attempting to do in this legislation is to take the constitutional agencies from among the direct purview of the Ministry of Finance and to place them where they belong, as constitutional agencies, with all of the mechanisms, machinery of control and accountability in place that we need to do this in order, as I said, to guarantee their independence and to strengthen them.
Thank you, Mr. Speaker. [Applause]
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