The Service Commissions1456 13 Jun, 2012
Mr. Greenidge: Mr. Speaker, I rise to speak to the motion, as you have already indicated, on the service commissions. I think that in an effort to perhaps clear the underbrush, as it were, I should begin by making two general points in anticipation or in response to some observations of a general nature that have been made in respect to this and other motions. I would like to indicate that first of all we, that is the A Partnership for National Unity (APNU) certainly, have arrived at no agreement with the People’s Progressive Party (PPP) on the treatment of the issue of service commissions, and that the other issues, which are subject of the motion on the Order Paper, have also not led to any agreement and that is precisely why they are here today. We did raise them during the budget discussions and the tripartite meetings, but in keeping with the Government’s approach to such issues, I think it was in 2002, absolutely nothing of consequence or value has emanated from those exchanges.
On the sole comment of consequence which was raised by the Government as to why it had included these agencies in the schedule, concerning the Fiscal Management and Accountability Act, which, as we have argued, curtailed their economy, it pointed to the absence of the mention of these service commissions in the Constitution itself. The Constitution, as colleagues would be aware, has established four service commissions and their functions are functions which are universally carried out under the Westminster Constitutions. Under the variance of that Constitution the autonomy of these service agencies is guaranteed. It is true, also, that the relevant schedule in the Constitution does not specify these agencies, as one mentioned, as being autonomous. I think it would be stretching logic, to the extreme, to argue that the Constitution does not require them to be independent or autonomous. The way that the Constitution words the position of the agencies, which are on that list, does not preclude others from being autonomous. In other words, it is not worded exclusively. I think in logic one would argue that to say that some things sitting on a table that we now call birds are black does not mean that everything that one sees black is a bird, which means, then, that we are not precluded from including those or treating those service agencies as though they are autonomous.
Secondly, what I am arguing, in essence, is that the Constitution has no intention of excluding these agencies from that treatment. There is nothing preventing the Government from treating them as autonomous. In fact, it is imperative that they be treated as autonomous because, as I have indicated, in the context of the Westminster Constitution that is how they are treated. In fact, if the Members look at the legislation applicable to the individual service commission - let me take one for example, the Teaching Service Commission – they will notice that the wording is as follows, and this is from part three of the Commission, paragraph eight:
“Save as otherwise provided by this Act in the exercise of its powers under the Act the Commission shall not be subject to the direction or control of any other person or agency.”
In the light of that, the views of the three aggrieved Hon. Members, on the other side of the House, who have lost no time trying to persuade the public that this particular motion is unworthy, let me say that the way that the Acts have been cast these comments and criticisms are mainly diversions.
Let me turn now to the issue of substance. The Westminster or Whitehall model emphasises the importance of neutrality in the public service. In the Commonwealth Caribbean, this is recognised both constitutionally in the creation of the independent Public Service Commission which provides for the appointment, promotions and disciplining of public service officials and the fashioning for rules and regulations governing the activities of public servants in office. Two of the most importance of these is that public servants are proscribed, especially at the highest levels, from political activities, such as office holding in political parties, and the public expression of personal views on Government policies. Secondly, there is the expectation that senior officials will offer the best possible advice on any particular policy to the Minister he or she serves without any form of political bias either towards or against the Government and that they will carry through policies to the best of their competence, once a decision has been reached.
This is the context in which these service commissions have been established. In the light of those obligations on the one side, on the officials’, in respect of their behaviour, the Constitution normally guarantees them quid pro quo. They remain anonymous as regards their policies advice. In other words, that policy advice is treated as confidential and their exposure to subsequent criticism, if there is any of the policy, is shielded by the convention that the responsibility for the policy ultimately lies in the hands of the Minister. This, I suppose, that some people may argue, is a counsel of perfection.
In practice, in the region there have been, since the countries have achieved independence, a number of problems associated with the operations and the independence of these service commissions, and I might just single out one set of comments by G.E Mills who is a Jamaican professor well known in the region for his pioneering studies of public service in the Caribbean. He said that:
“In small, highly personalised societies such as those of the Caribbean the political sympathies and loyalties of individuals tend to be widely known. Those who hold public office have a high visibility quotient so that anonymity and confidentiality are virtually impossible. Senior civil servants are over exposed in the political arena. Ministers are virtually, continuously bleeding down their necks and tension and conflict between politicians and civil servants are thereby intensified.”
I cite this just to draw to the attention of the House that in reality there is a certain tension in the positions carried out by the Ministers on one hand and the public servants on the other. For that reason the commissions are cast as independent or autonomous and it is very important that, in the way that their functions are cast, within the laws, foreign from the Constitution, those laws be very consistent with the intent of the Constitution. In fact, the tension, which I have made mention of, has been further heightened by the deliberate politicizations of the public service. I am giving you here the views, which I shared of course, of G.E. Mills and some others who have concerns that these politicizations have been particularly marked in the period of democratic socialism from 1974 to 1980 in Jamaica, in particular, as well as in Guyana. It goes on to add that in Guyana, especially toady. I do not suppose I need to remind you that we have at least two Members of Parliament in this House who are also public servants, who hold public office, and that is undermining, in consistent with the principles that I had set out at the beginning. There are a number of others. I am not going to go into that now.
So the commissions are intending to insulate the public service from undue political interference. The Commonwealth Caribbean countries - the Caribbean Public Service Commission - all have separate Public Service Commissions and the majority have the Police Service Commissions, some have separate Judicial Commissions and Teaching Service Commissions as well. The rationale for the Public Service Commissions, in particular, was, as I had indicated, to protect the public service, to provide public servants with equal opportunity and fair treatment on the basis of merit or at least minimise the incidence of the exercise of patronage. This is very important in the context on the financial side as a reward for support of a political party or of individual politician. In other words, the importance of the public service and the related service commissions is very important if they are to be autonomous from the Government and they are supposed to be staffed by specially appointed Commissioners and supported by a staff of public servants. This was the idea, but as we go through the experience, even in two or three decades, which are most recent, as opposed to those immediately after independence, one finds that a number of problems have occurred in relation to the workings of these commissions. One of those has to do with changes made at the beginning of this millennium and subsequently…, and that has to do with the way in which the commissions were appointed which was, in fact, resulted in these commissions being in effect - dormant.
In addition to that, there is the factor of the Fiscal Management and Accountability Act which I do not think, at this stage, I am going to go through the points that I made the last time when we were looking at the court system and the impact of the powers enshrined in this Act on the financial autonomy of these agencies and de facto institutional control of them. I am saying the way that the Fiscal Management and Accountability Act interposes the Minister of Finance between these entities and the Consolidated Fund to the extent to which they have to go, rather than giving automatic access to the Consolidated Fund once a vote is approved, that mechanism, undermines their powers. And to the extent, of course, that the 2003 Act was an Act intended to strengthen financial management, when one understands that intent, but it could not have been the intent to strengthen financial management by undermining the autonomy of constitutional offices, offices which are very important to the working of the Westminster-type system and which are very important to the protection of public servants from caprice and other types of arbitrary behaviour on the part of the executive. That is exactly what we have to deal with today.
Indeed, I think one can add that there is mechanisms that have complemented the 2003 Act such as the, if it is liked, untrammelled extension of contracts in recruiting public servants in spite of the fact that Public Service Commissions, including Teacher Service Commission, and so forth, are not in place or might have called upon agencies not to usurp their powers. We found ourselves in a situation where the public servants are not protected in the way that the Constitution requires, if the Constitution, itself, is not undermined and become unstable by the fact that obligations, in err, on the one side, as regards public servants, but the Government, on the other side, does not respect those obligations in terms of allowing these entities to operate autonomously. So, I am saying that the Fiscal Management and Accountability Act and its elements complement a general framework in which the Government seeks…, especially in the light of the comments made by Dr. Jagan some years ago about what political powers exercised by the party in office, at the moment, as opposed to the powers for sympathies, if it is liked, of the civil servants. We find what has been, in fact, a systematic undermining not merely of the public service, or not merely of the service commissions, but those groups and categories of officials that are meant to protect and to provide a buffer as far as issues such as appointment, dismissals, terms of employment, and so forth are concerned. I would argue that we have found ourselves, therefore, at the end of that exercise, in a situation in which the public service of Guyana, by and large, finds itself exposed to behaviour and practices from which they have no recourse at all.
I would remind the House, at the same time, that in addition to the service commissions, by and large, not being operative, there is the appeal tribunal as well. The tribunal associated with the Public Service Commission, for example, not being operational without the bodies that it is supposed to have. The public servants find themselves where emoluments are the source of much grumbling, where the filling of vacancies directly utilising the recommendations or directly involving the service commissions is bypassed and in which promotional opportunities are…. Officials can find themselves denied promotional opportunities by a variety of institutional devices intended to divert or deny opportunities to the public servants who are qualified to be employed in the public service and to be promoted for the benefit of others who are not so qualified. So, that is the essence of the problem that the Fiscal Management and Accountability Act, by the powers it gives to the Minster over the operations of these entities that are budgeted agencies, it exposes the public servants and bodies that are meant to oversee their interest. It leaves them vulnerable to the very things that the Constitution was intended to avoid.
Those are the observations of substance that I want to draw to the attention of the House and it is in the light of that that we would like to ask the House if it would look at the resolved clauses of the motion which are as follows that the National Assembly should take steps as early as possible to replace the schedule with one that does not list these service agencies as budget agencies covered by the actions of the Ministry of Finance in the way that they are constrained under the Act, but instead, to allow them as with the other properly constitutional entities, to receive their funding directly from the Consolidated Fund.
As I indicated before, it does not mean that these agencies are supposed to be determining the budgetary allocation that they receive. It does not mean that they are exempted from the rules governing proper financial management. But what it does mean is that they receive a block vote out of the Consolidated Fund. They are entitled to dispose and allocate those funds in a manner consistent with the goals that they set themselves; in a manner that would enable them to carry out their constitutional duties effectively and responsibly.
Bearing in mind, again, Mr. Speaker, that what we had established in looking at the other entities, to the extent, that finances and the apportionment of finances within an agency’s budget can be amended by the Minister of Finance and the Ministry of Finance, then it leaves the Minister actually in operation and control of element which includes recruitments; it includes priorities for the agencies, the timing of their work, and so forth, and you can well understand therefore why that element of the resolution clauses calls for the removal of these agencies from the schedule.
We also are proposing that the commissions be formally treated, that is the Judicial Service Commission, the Police Service Commission, the Teaching Service Commission, the Public Service Commission, as autonomous agencies, drawing directly from the Consolidated Fund and that these changes be reflected in the annual estimates to be submitted by the Minister of Finance for approval of the National Assembly on the next occasion on which he presents such estimates.
I thank you very much Mr. Speaker. [Applause]
Mr. Greenidge (replying): Thank you very much Mr. Speaker. I would first of all like to say that initially when I heard the presentations of our colleagues on the other side I was quite heartened. I heard words that suggested a certain empathy between the two sides of the House. I took the trouble to jot down some of the phrases. I see the desirability of these service commissions in the Constitution. I see the proposal being worthy of consideration and so forth.
As we arrived at the presentation delivered by Madam Teixeira, I realized that it is like football, a case with the Prime Minister Versus the rest. You have our friend the Hon. Minister G. Persaud over here giving us a presentation that sought to unilaterally impose not only terms but positions. I heard for the first time that there was a proposal for partitioning. I did not speak to that. I spoke about partisan, but never mind, we would not break a lance over those. The point is that judging from the presentations from the other side, notwithstanding, even if you do not call it grandstanding on the part of some, the issue between us is narrow. What the debate is actually turning on is really the instrumentality, whether you are going to do it in the most expeditious and obvious way or whether you are going to take it via the slow boat to China as it were.
Why do I say this? I say this just to remind our colleagues, after the learned presentation made by Madam Teixeira concerning legality and unconstitutionality. Let me just remind you of something. The Auditor General’s Office was placed as a budget agency under the Fiscal Management and Accountability Act in direct contravention of the Constitution which requires that it be accessible to the Consolidated Fund directly. They put it there in 2003. This PPP Government put the Auditor General’s Office under the Fiscal Management and Accountability Act and no Constitutional measures were involved. There was no constitutional issue raised in that regard. Having included it illegally or unconstitutionally in the Fiscal Management and Accountability Act we find that this year in response to a motion submitted by this side of the House, it has been removed from the midst on the schedule of the Fiscal Management and Accountability Act and no constitutional change was involved. What is it we are saying? It is smoke and mirrors we are playing with.
You included it in the schedule of the Fiscal Management and Accountability Act and no constitutional change was required. You took it off of the Fiscal Management and Accountability Act and no constitutional change was involved. It is absolute poppycock. We are being assumed to be illiterate; that is the assumption. If you can breach the Constitution without calling a change in the Constitution, or if you can take it out of the Fiscal Management and Accountability Act without any Constitutional change being required, then we can take the Commissions off of the schedule. You have just taken the Auditor General’s Office off of the schedule and it did not require a constitutional act. The Auditor General is sitting there looking serene; he never told them that it required a constitutional act. They took it off and it did not require a constitutional act, so this does not require a constitutional act.
Let me tell you something else. Mr. Speaker, may I just remind our colleagues, since they are so keen to hammer this case of the ERC. The ERC in our view is a constitutional office in the same way as the service commissions. Look at what the Government has done with the ERC. The ERC has not been scheduled to get funds directly from the Consolidated Fund. In fact it is in a place that the Auditor General criticises the Government for. We are being told things here without the persons fully understanding what was being said.
Could I refer you colleagues to the Estimates of 2012? In the Estimates of 2012 on page 386 has under the title “Details of Subsidies and Contributions to Local Organisations” – this is a constitutional body you are talking about. Listen to what we are being told about the import of the ERC and yet it is treated here in the Estimates as a local agency in the same standing as a whole set of Non-Governmental organisations (NGOs) and Non-State Actor.
Ms. Teixeira: Mr. Speaker.
Mr. Speaker: Is it a Point of Order?
Ms. Teixeira: Yes, I believe Mr. Greenidge is beginning his discourse on the Audit Office motion. I do not think we have finished the one the Service Commission.
Mr. Greenidge: Mr. Speaker, I believe that we have all been regaled, if you do not mind the expression, by the Hon. Whip’s familiarity with the ERC and so forth. I am speaking to the ERC. I am saying that the ERC is treated by the Minister as a NGO or Non-State Actor and not as the Constitution requires, might I remind you that these entities that are constitutional offices be given direct access to the Consolidated Fund. If you go to the substance of the Estimates under the Current, you will then find a subvention under Local... [Ms. Shadick: This is a subvention agency] I understand the difficulty that the comrades are having. I am referring to the Estimates and the modality of treatment. I am saying, if I might reiterate, that the change that is required simply requires that the Minister exercise his powers as provided for in the Act to amend the schedule just as he did with the Auditor General’s Department. That is power that the Minister has and it can be done.
May I say also that as grateful as we were for the background which Madam Teixeira provided us and the Hon. Prime Minister’s explanation that some of the reasons for the unusual, unconventional and in some eyes unacceptable treatment provided to these Commissions lays in the new challenges posed by developments since the 1960’s. Both of them had said that.
Madam Teixeira just referred to the challenges of the new appointment mechanism. I have no difficulty with that. In fact in my notes I did make mention of it that the appointment mechanism, and in fact it even has the House looking at the exchanges and the reports of the Constitutional Reform Committee. You will see extensive criticism of both this House in the appointment of its representatives as well as the political party. I have no difficulty with that; that is really not the issue. The issue is that the consequence of that is that these service commissions as a consequence suffer from either not being established or when they are running they face a variety of operational difficulties. I am saying that one of the most important of the operational difficulties inclusion upon the capacity of the head of these institutions to run them properly in timely fashion and to do the things they are supposed to do originates in the Fiscal Management and Accountability Act.
Therefore, what it seems is that we have common ground as to the causes of things, common ground as to the impact to some extent – I will come back to that in a minute. What I am saying to you colleagues is that at two levels these measures have an impact. One is one the way that the Commissions themselves work and the other is on the rights of workers in whose defence these Commissions were established. For their rights to be protected the Commissions have to be independent financially. So, we also see, if I might just remind you, that is not a singular occurrence of the application of the Fiscal Management and Accountability Act to the service commissions. You have no Human Right Commission in place, no Ombudsman as well as the absence of these Commissions which pertains to the rights of the individuals. The sighting of the Audit Act and the Audit Act of Trinidad and Tobago is really quite irrelevant here. As regards the argument that we are making, we are saying that a lump sum payment should be made out of the Consolidated Fund to these entities.
Since we were regaled by the experience in Trinidad, let me just draw to your attention two types of reactions and consequence that one can see in relation to the operations of the Trinidad Public Service Commission, Teaching Service Commission and so forth. I am going to follow in the footsteps of the previous two speakers – the Prime Minister and the last speaker – who gave us the benefit of their understanding of what happened there.
Let me, first of all, say to you that in the report to the Constitutional Reform Committee there was extensive criticism of the difficulties faced by people within the Public Service as a result of the pressures, financial and otherwise, of the Government on these entities. I just make reference to two cases, just to make my point. In relation to a case where the Secretary of the Public Service Commission writes to the Permanent Secretary indicating that the proposed filing of an employee or public servant was not in keeping with the rules and that letter was followed by a reaction by the Government and the Secretary was fired.
In the case of Trinidad and Tobago where a recent controversy has arisen between Ministers Dr. Gopeesingh and Mr. Devant Maharaj, it is interesting…
Mr. Speaker: Mr. Greenidge, sorry, going back to the first example, is that a local…
Mr. Greenidge: That is a local case, Mr. Speaker.
Mr. Speaker: I am concerned about statements being made and left in a bald way.
Mr. Greenidge: Do you need the names of the persons involved? I would…
Mr. Speaker: I would only ask that you have the documentation, and I know you do, to support what you have stated.
Mr. Greenidge: Yes. I made mention of a report to the Constitutional Reform Committee and it is actually available for everyone to look at.
Mr. Speaker: Thank you very much.
Mr. Greenidge: As regards the Trinidad and Tobago case, as I was saying, the issues are rather different. It is not a question of their autonomy. The conflicts that have arisen between the Commission and the Ministers actually are that that particular standoff which occurred not so long ago does not turn upon anything as notorious as our own cases, that is the removal of persons for having different opinions or for being an obstacle, but, in fact, for the failure of the Commissions to carry out their duties. In other words they failed. The Ministers are calling upon them to act expeditiously to make their appointments, to make their recommendations and to take their decisions. One can always go and find another country which one thinks makes one’s case, but, unless one looks at these examples in their entirety, the analogies or parallels that are being drawn are not very helpful; they are self-serving. Just as I could find a contrast which our colleagues on the other side found inconvenient, the examples that they cited did not find favour on this side.
Perhaps I should close with a comment both in response to the Hon. Mdm. Teixeira and the Hon. Minister Ganga Persaud which said that in no case did the presentations make reference to the adverse impact… [Mr. G. Persaud: We need evidence.] …yes, you called for data and evidence and I am saying to you, Mr. Speaker, as I was explaining before, some of this exercise we went through in relation to the courts. The issues are exactly the same and what I am saying to my colleagues is, in relation to the Financial Management and Administration Act, the constitutional offices are subject to a number of interventions that the Minister of Finance, himself, can make apart from the allocation of a block sum. There is no block sum involved. He can change the elements of the total. There is a device in this called drawing rights which the budgetary agencies have. The Minister may (let me just read you the passage since I am being accused of being too general) - in relation to the drawing rights of budgetary agencies the act says:
“An official shall not do any of the following, except as authorised by a valid drawing right…”
Then there are a whole set of things. Then it says in section 4:
“The Minister may at any time revoke or amend the drawing rights…”
This is not consistent with the passage in the Constitution. This is not consistent. The implications of this type of power that can be removed arbitrarily without the need for an explanation is that it gives the Minister discretion to grant privileges and to withdraw them without warning or the need to justify.
The effect of the schedule therefore is to make the Auditor and the Audit Office subject to the influence, if not the whims and fancies of the relevant Minister. That is precisely what the Act specific to the Service Commissions, prohibits. So, if my colleagues follow the relevant passage in the Act they will see what the point was that was being made here. What I am saying is the change that we are urging is a change that does not require any constitutional action, but if the other side is willing to join us in that we can have the two-third majority since they are agreeable in principle to the elements. It can be done right here and the matter can be resolved.
I urge, in the light of all of these points, the possibility of the change, the non-necessity of constitutional change as such, as well as the fact that the other side has already included and excluded a particular entity from the Financial Management and Accountability Act, notwithstanding the Constitution, that the motion be commended to you for your fulsome support. Thank you very much. [Applause]
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