Authority of the Assembly to make Amendments to or to Effect Cuts to the Estimates3270 15 Apr, 2013
Mr. Ramjattan: Thank you very much Mr. Speaker. The right of the parliamentarians in any Westminster democracy to propose amendments and even to effectuate amendments, is an inherent right of every National Assembly. To degut the National Assembly of that right is literally to take away the heart, if we were to compare the National Assembly to a human being. That is what gives the National Assembly that power of scrutiny and of supervision of the public moneys. What we had was a provisional judgement of Hon. Chief Justice Mr. Chang, though in the context of a variety of interpretations, I urge you as Mr. Speaker here to come to the conclusion that notwithstanding certain interpretations given to his ruling, we cannot cut, that indeed we can. The Constitution of Guyana gives us that right.
I refer to the material and relevant portion of Article 218(A) of the Constitution. It provides, and I have some notes here:
“The Minister responsible for Finance or any other Minister designated by the President shall cause to be prepared and laid before the National Assembly before or within ninety days after the commencement of each financial year estimates…
When the Estimates of expenditure have been approved by the Assembly a Bill, to be known as an Appropriation Bill, shall be introduced in the Assembly , providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure…”
We have two points here. Firstly, after laying his Estimates in the National Assembly the Minister of Finance seeks the approval of that Assembly. And generally, the approval comes with the motion that he lays before us, that he would like to see $208 billion expended for the year 2013. We have a motion to that effect laid here with his Budget speech.
Secondly, he has to come also for support from this National Assembly for what is called the Appropriation Bill to be approved so that expenditure can then be spent. It will, of course, have to be assented to by the President. However, what we have first of all is the submissions from the Attorney General and then a provisional ruling – and I use the word provisional ruling because it has never been made final and the Attorney General would like us to be bound by that. The arguments goes thus that the National Assembly, by the words approved in the Constitution, the National Assembly is being told in the form of submissions by the Attorney General that it can only approve or disapprove, it cannot reduce, amend or alter the expenditures. I am saying and making this submission that that is totally flawed. This power to approve obviously must mean to amend. It is strange that we in the National Assembly, it is being argued by the Hon. Attorney General, can disapprove all $208 billion of expenditure or we can approve all but we cannot reduce even by $1. That has to be a most notorious interpretation of our Constitution. To conceive that kind of argument is nothing more reckless and misconceived.
I want to bring to the attention of this National Assembly that our Constitution provides that any Member can seek a reduction of the expenditures and the estimates. Article 171(2) of the Constitution provides this:
“except on the recommendation with the consent of the Cabinet signified by a Minister the Assembly shall not -
(a) proceed upon any Bill which, in the opinion of the person presiding, makes provision for the following purposes
(i) (this does not apply)
(ii) for imposing any charge upon the Consolidated Fund or any other public fund of Guyana or for altering any such charge (and these are the very significant words) otherwise than by reducing it.”
What that is saying clearly is only for the increase it has to be done by a Cabinet Minister. If we wanted to increase the budgetary allocation from $208 billion to $280 billion, it has to come from some Minister over there. However, for imposing any charge upon the Consolidated Fund or any other public fund or for altering any such charge otherwise than by reducing it, it has to come and can come from any Member. The Constitution is clear. This Article was not addressed in the decision of the learned Chief Justice; provisional decision.
Moreover, Article 171 (2) (B) talks about a motion that must be brought here; that motion was brought here. In the Committee of Supply, that committee has the power to make revisions thereon once, of course, a person gives notice of what the amendment should be.
I want to state that in this Parliament we are governed by certain Standing Orders and the Standing Orders state very clearly what we can do in relation to amending a budget. Before I go to the Standing Orders, I want to indicate what the practice is in England because it is from them that we got our practice in relation to budget and alterations thereof. It is clear in Parliamentary Practice by Erskine May – I had an older edition and I quoted from it. This is what chapters 26 and 27 of the 21st Edition states:
“Firstly it is the executive branch which demands money and the House of Commons that grants it.”
Similarly, here the Minister of Finance demands $208 million and it is this National Assembly that has to grant it. I want to make it quite clear as Erskine May makes it clear, the point must be made that this does not mean what is demanded must necessarily be granted. This is where the Hon. Attorney General and the learned Chief Justice in my view erred.
“Two, that a charge on the Consolidated Fund must be first considered in the form of a resolution or a motion.”
This is what Erskine May is saying.
“And when agreed to by the House of Commons in its Committee of Supply state then that charge could be authorised through an Appropriation Act.”
That is exactly the position here. When the learned Minister of Finance indicated that his motion is to seek $208 billion in expenditure he was doing exactly as what happens in England. So it is the rule that expenditure then must be authorised by this resolution or motion we have, and then later on by that Appropriation Bill that will soon come to the House.
Thirdly, in England the practice continues:
“The contents of the Estimates are designed to correspond to a variety of programmes coming under a particular government department, each of which is subdivided into subheads.
That is exactly what we have here; these very thick books - three volumes - all under subhead, agencies and line items. What is done in relation to each in the Committee of Supply stage is approve, revise or disapprove of them. That upon the voting on an individual estimate if an amendment is to be carried the subsequent question will be put by the Chair that is you Mr. Speaker. Then you can ask the question once, of course, there is the need for a cut to be made but, of course, again, we have to do the proposed cuts with 24 hours notice. That is in accordance with the laws.
If I may continue just with another one, the final practice. There must be legislative authorisation in the form of an Appropriation Bill after you would have done whatever the cuts or revision to the estimates are, and generally the Committee of Supply will see the Minister making the report to the National Assembly that the Committee of Supply has gone through the Estimates, and let us say there are cuts as we did last year, he will then report that there have been cuts and it is now an estimate as amended. Last year that is what was said. I am absolutely certain this year it is also going to be said as amended depending on if we do not get the answers and we have to do the cuts. It is important to understand that it is the Committee of Supply that will make the report to the National Assembly, which is the same thing, stating whether indeed, indeed we have an amended Estimates or not.
The practice in Guyana is also similar to England by virtue of what we had placed in the Financial Management and Accountability Act (FMAA). Also, what are certain other Articles of the Constitution like Article 217, which says:
“(1) No money shall be withdraw from the Consolidated Fund except –
(a) to meet expenditure that is charged upon the Fund by this Constitution or by any Act of Parliament; or...”
It goes on it sub-articles (2), (3) and:
“(4) Parliament may prescribe the manner in which withdrawals may be made from the Consolidated Fund or any other public fund.”
All these Articles gives quite clearly because Parliament means the National Assembly and the President; they are saying that Parliament has the power to do all of these things. An integral component of the Parliament is this National Assembly. If all these Articles are giving Parliament or even if the word National Assembly is used, then it obviously means that we in this National Assembly have the power to make these cuts or amendments or alterations which is a better terms to use.
I want to go now to our Standing Orders, which surprisingly was held by the Chief Justice as not being law. Well, as I have argued before that learned Chief Justice, it is but the law of Parliament, that special branch called lex Parliamenti. Of course, I did not see in his decision anything mentioned about it again, but the law of this Parliament is governed by the Standing Orders. The financial procedures are stated quite clearly in Standing Order No.71 and thereafter. This is very important because this is what Standing Order No.71 says”
“Estimates of Expenditure
(1) The Estimates of revenues and expenditure for a financial year shall be laid before the Assembly by a Minister...”
And so on, within that certain time period.
“...after signifying the recommendation or the consent of the Cabinet may, without notice, move a motion for the approval of the Estimates of expenditure. Such motion shall be the occasion for the Minister to make the Annual Financial Statement or Budget Speech.”
We had that and we had the budget speech in print and attached therein was the motion of Minister Singh.
“(2) After the motion has been proposed the debate thereon shall be adjourned...”
To a day later; that of course, we did already. It is very much in keeping with what we have done so far.
This is the very important one under Standing Order No.71 (5):
“The motion for the approval of the Estimates...”
In that Committee of Supply:
“...shall be amended if necessary, and put, without further debate, as moved or as amended, as the case may be.”
That is what it says. Standing Order No.71says, that that motion that the Minister has brought here, shall be amended. The motion that he has brought here is that he spends $208 Billion. We have the power under the Standing Orders to make it clear that we can amend, if necessary and put without further, debate as moved or as amended, as the case may be.
Also, we have what is the work of the Committee of Supply. Under Standing Order No.72, it states it quite clearly that the Committee of Supply is to consider the Estimates. Later on at Standing Order No.76, we have this:
“Amendments to the Heads of Estimates of Committee of Supply”
This is what Standing Order No.76 (1) says, just to give the significance of the argument that we can propose amendments:
“(1) No amendment shall be moved in the Committee of Supply under this Standing Order until one day after that on which it was published in the Notice Paper.”
No amendment to this motion, that is, that they sent $208 Billion shall be moved in the Committee of Supply under this Standing Order, until one day after that on which it was published. It is conceptualising amendments, but the amendments must come when we give a 24 hour notice. It could not be that it never contemplated that we have to either approve or disapprove; we can amend.
Look what Standing Order No.76 (4) says:
“An amendment to any Head of Expenditure to reduce the sum allotted thereto in respect of any item therein may be moved by any Member, and shall take the form of a motion ‘That Head........... be reduced by $......... in respect of (or by leaving out) Sub-Head......... item .........”.
There is what is called some blanks. It has it quite clear. In our Standing Orders it has the blanks as to how you will full them up; take a look at it, Standing Order No.76 (4).
“An amendment to any Head of Expenditure to reduce the sum allotted thereto in respect of any item therein may be moved by any Member...”
I am not a Minister; I am any Member here and I have asked to reduce it. I have given that 24 hours notice. I am going to state in relations to the line items, as I have done, how much we want it reduced by. We can do it because it is in accordance with the Standing Order.
There can be no clearer position from any reading of these Standing Orders that reductions were contemplated by the Committee of Supply. What I also want to state is that it is explicitly stated in our Constitution, in our Financial Management and Accountability Act and moreover, in our Standing Orders.
I have here, the suggestion, as I started off with, that if we are to degut this National Assembly of that power and authority, we are literally going to make this National Assembly the de minimis. We must never allow this. This power of National Assembly as especially taken out of West Minister democracies was a power that saw first of all huge fights in England, 400 years ago, between the king and the parliamentarians. If anyone was to read Tudor’s Constitutional history, they would come to the realisation that to become Parliament it had to have this power of supervision over the public’s purse. To take away that power then is to denude us of the entirety of the powers that we have to ensure Government’s money are spent properly. It is the people’s money and the people’s representative is that first authority to ensure that it be spent properly.
Mr. Speaker, I am going to give the arguments, if you would like to have it because I was more or less quoting from the extended arguments that I had written out, but it is quite clearly the position that this National Assembly has that power.
I want to make this point because it is very important that in matters to do with financial revisions and so on. When Parliamentarians are going to vote, very many people out there might feels that what they did was wrong. It was politically immoral what they did, to cut, let us say National Drainage and Irrigation Authority or the Cheddi Jagan International Airport (CJIA) or the Speciality Hospital Project, et cetera. They might very well feel that way. Whatever they feel, the authority to revise...
Mr. Speaker: Let us avoid the political arguments and focus on the legal or procedural. People will talk.
Mr. Ramjattan: Very well. That is right. That must not then be the abhorrent argument to hold that we cannot cut. That was the point I was trying to make because it was this and that, we must not do that. We are the final authority here and this kind of controversy then ought to be determined that way.
There is a very important thing that I would wish to mention to this Hon. House. It is coming from the Hon. Minister of Finance when he rebutted largely what I was saying last year with a set of remarks, which he made. We are talking about an extremely qualified person. I understand that he got good fantastic A Grades and all of that in his Degree in Accountancy and there is absolutely no way he would not know that we can make our reductions here. He knows it and on the 17th of April last year, 2012, this was what he said:
“Over the next six days...”
I am quoting him from the Hansard...
Mr. Speaker: Can you give the number because I may have to have a copy of that.
Mr. Ramjattan: It is Hansard, Part 2 of the 12th Sitting, Tuesday, 17th April, 2012, it had started sometime at 3.04 p.m. I will give you a copy Mr. Speaker. This is what he said:
“...Hon. Members brandish numbers that they pluck out of thin air even when they deliberately, and otherwise, multiply them incorrectly - to brandish the imaginary scissors in the air as if to drive fear in anyone.”
That was his introduction there before he came to the important point. Then he goes on to say:
“Over the next six days we will be considering the national Estimates and it is the legitimate right of the Opposition to ask any questions it wishes, within the Standing Orders, in relation to those numbers. It is, indeed, the legitimate right of the Opposition to propose any change, within the boundaries of the Standing Orders...”
[Mr. Nagamootoo: Who said that?] He said that.
“...to any of those numbers.”
That is what he said. It is the legitimate right of the Opposition to propose any change within the boundaries of the Standing Orders to any of those numbers.
“We, in the People’s Progressive Party/Civic, will always defend that right. Our laws provide for it; our Standing Orders provide for it, and we will defend that right.”
That is what he was saying last year. I want to give him a loud round of applause. [Interruption]
He was conceding that we had that right.
Mr. Speaker: The Hon. Member.
Mr. Ramjattan: The Hon. Member sorry.
“But I will say this: that that right shall have to be wielded and exercised responsibly because the people of Guyana are watching.”
It is in the contemplation of even the Minister of Finance. Bright person as he is, with all the readings that he has done, that indeed we can cut, indeed we can make our amendments. We agree with him that we are not going to be wielded and irresponsible. No, we are going to be very rational like we were last year. It is important that what he is asking us to be that we will provide that. I want it to be known that in this Parliament, this Hon. Minister did concede, rightfully that we have the authority to reduce and amend the Budget.
There are lots of other things that he mentioned in here, when he said that he was hoping that we are having the right to cut, make judicious cuts. He was asking us to be judicious. He was saying, yes we can cut. Then of course he goes on.
“I hear Mr. Nagamootoo is threatening by saying “judicious cuts”.
I will say this, that it is incumbent on all of us to ensure that we do not use this tyranny of one...to cut solely for the purpose of cutting.”
Again, he was, by virtue of stating that, alluding to the fact that we can make this cut. When you read that very latter part, especially... we have also a number of cases all across the world where there are Elective Representative Assembly, through the deliberate process that their Standing Orders would provide for to make amendments to the country’s Estimates. It has happened in Sweden recently, it has happened in Australia, it is happening in America right now. Mr. Obama, the President of America is having huge problems with the House of Representatives saying that they would like to see cuts in certain pork barrel projects. In Jamaica, we have seen it and all of that.
It is not that we are alone. We have seen it all across the world where National Assemblies have that power. Especially this, what the Minister has said:
“It is ...the legitimate right of the Opposition to propose any change, within the boundaries of the Standing Orders.”
The Standing Orders are saying we can make amendments. How come now he is going to say that we cannot? I am certain that he understood what he was saying her and he not going to now renege or retract on this. He did say this,
“We, in the People’s Progress Party/Civic will defend that right of the Opposition.”
Well I hope that he does.
Unless there is any other thing you would like to hear me on, I would like to end. [Applause]
Mr. Ramjattan (replying): I will be pretty short here, Mr. Speaker. First, and very quickly... I had about four points to make. Let me just make one very important one that gives very high regard to the Standing Orders and that is Article 171 (1). In relation to the powers under that Article this is what that Article says about Standing Orders, just to give the significance of what Standing Orders are and how legal they are:
“Subject to the provisions of this Constitution and the rules of procedure of the National Assembly, any member of the Assembly may introduce any Bill or propose any motion for debate in... [This Assembly]
Subject to the provisions of this Constitution and the rules of procedure of the National Assembly any member can bring any bill or any motion to be debated here in. The fact that the Constitution can say that the provisions of this constitution, along with Standing Orders are what this Article is subject to means that that is very important.
Secondly, I wish to make this point. The argument was made that when we in the National Assembly amend the estimates that we are proposing the estimates to this Assembly. That is an abrogation of the powers of the Executive Branch.
Mr. Speaker: In the act of proposing an amendment to any line item you are crossing the divide.
Mr. Ramjattan: That is what their argument is.
Mr. Speaker: That is the argument.
Mr. Ramjattan: I am saying that since we have the power to disapprove, as the Chief Justice says... [Mr. Nandlall: He did not say anything about...] The Chief Justice said that we have the power to either approve or disapprove and the Attorney General quoted that. When we make our cuts to the estimates we effectively were disapproving that $179 billion they brought last year. What the Minister did... He could have done two things. He could have accepted our proposal or he could have run back to his Ministry knowing then that we were only going to pass a budget of $158 billion, reconfigure his whole budget and come back with $158 billion in here. The Minister did not do that. The Minister, realising that it would have taken another three months or eight months to go reconfigure his budget literally accepted as amended our $158 billion so, in a sense, he went back to his... but it is only symbolic. Figuratively he went back so in a sense when we make our cuts here, to be consistent with...
Mr. Speaker: The Chief Justice has described that as “constraining circumstances”.
Mr. Ramjattan: That is right but even if they are constraining circumstances it is because we do have that power to make the cuts and cuts are going to be constraining but the Minister, by virtue of coming, just in Parliament here, and arranging that, “Okay, well, I cannot do anything about it; rather than not have a cent because it will be total disapproval and I cannot go into any charge to expend moneys, I will then adopt what the National Assembly by majority has come up with”. Then he comes with his $158 billion, instead of the $179 billion. Effectively then he is approving as amended. Now his approval as amended is literally his “proposership” still. It is not the “proposership” of the National Assembly and I want that point to be made; it is still his proposal.
Mr. Speaker: Your argument is: When the Committee of Supply suggests an amendment, once the Minister took it forward as he did last year, the power of repose still stayed in the hands of the Executive.
Mr. Ramjattan: The Executive Branch. That is right. That is the point.
Mr. Speaker: The proposal for an amendment was just a proposal, in a sense. In essence, it is really just a proposal of this House but that the Executive Branch is not obliged...
Mr. Ramjattan: ...to accept it.
Mr. Speaker: ...to accept.
Mr. Ramjattan: That is right and he, by accepting it...
Mr. Speaker: ...carried out the executive function.
Mr. Ramjattan: That is right and by reporting to the National Assembly, as he did, it becomes their proposal still.
Dr. Singh: If I may, Sir.
Mr. Speaker: One second, Mr. Finance Minster. I am just trying to follow Mr. Ramjattan’s argument. I have not said that I have accepted it. I am just trying to follow his argument so there is no need for me to hear you. I am just trying to follow the argument as it is coming.
Mr. Ramjattan: Mr. Speaker, that is why when, like last time, we in the Committee of Supply made those cuts the Minister in reporting to the National Assembly after the mace was taken off – that symbolic act when the Committee of Supply then transforms itself back into the National Assembly – we then say him reporting, “Mr. Speaker, the Committee of Supply having done ‘so and so’ I now report that, with the estimates as amended...” That is what he did. He wants to say that it will be constraining circumstances.
The main point that I wish to make has to do with Article 171 (2) (b). We, in this Committee of Supply, when we start making our proposals or acceptance with the line items have a power to also amend the motion brought here by the Minister of Finance. Remember that the Minister of Finance has brought the motion. It was stuck into all of the budget debates; a motion that said that he would like, at the Committee of Supply stage, for the budget that he has proposed, $208 billion, be approved. Article 171 (2) (a) says:
“Except on the recommendation or with the consent of... a Minister, the Assembly shall not-
(a) Proceed upon any bill... [that is (a)]
(ii) for imposing any charge...”
...except for reducing it. Now Article 171 (2) (b) says:
“proceed upon any motion...”
I have brought a motion here to proceed with certain alterations for reducing it. His motion is to pass $208 billion. As Article 171 is saying, I can also – any Member – can bring a motion to reduce it because Article 171 (b) applies mutatis mutandis to those powers that we have under the bill section in (a) so it is important that the Constitution, itself give the power of this National Assembly through a motion to ensure that we can amend his motion.
Mr. Speaker: How do you reconcile... Article 113 of the Indian Constitution which clearly spells out...
Mr. Ramjattan: Because that Article 113 of the Indian Constitution is literally the equivalent of 171 of our Constitution because our Constitution here is saying that any Member under a motion can reduce it and also, on a bill, we can reduce it. Article 171 (2) (b)...
Mr. Speaker: The Indian Article 113 is, but extrapolation or a refinement of our Article 171?
Mr. Ramjattan: It is far more explicit, but that does not mean that our Constitution did not provide for it. Our Constitution is saying “for imposing any charge upon the Consolidated Fund” for a bill but we know that when we are dealing with financial matters in this Parliament we have to come to a Committee of Supply stage first. We have to come to a Committee of Supply all the time, when it comes to finances, and as a result of coming to the Committee of Supply, which we must come by a motion, we can now have any other Member of this Parliament countering with another motion to reduce it and that is what Article 171 (2) (b) is saying. Article 171 (2) (b) is roughly the equivalent of Article 113 in the Indian Constitution and made these arguments, but the learned Chief Justice did not address Article 171 (2) (b). He did not. He did not even mention it.
Mr. Speaker: This is not an appeal court so do not let us go there.
Mr. Ramjattan: That is true. So it is important that we understand that we in this House do have that power to proceed upon any motion for the reduction of the charge. I want to make this point because it is especially important. Just bear with me, Sir. We in this Parliament having this power under Article 171 (2) (b) must understand that there is a very important argument that should be brought to the fore. In a free and democratic society, those who hold office in Government – that is the Executive – and who are responsible for public administration must be open to criticism. Any attempt to stifle or fetter that criticism will amount to censorship; insidious and dangerous and the legitimate criticisms fired by political opponents in the Executive are to persuade that we could do a better job in the Opposition and that is generally what democracy is all about. When we in this Parliament seek to state that we can do a better job by reducing the spending, it is but part of the democracy that this country allows. Also I wish to make the point that Justice Adrian Saunders in a very important decision – that is a Caribbean Court of Justice Judge – quoted an extensive piece as regards the separation of powers.
“Our democracy rests on three fundamental pillars, the Legislature, Executive and the Judiciary. All must keep within the bounds of the Constitution. The Judiciary has the task of seeing to it that the Legislative and Executive actions do not stray outside of those boundaries onto forbidden territory. If that occurs for a citizen with standing complaints the court declares the trespass and grants appropriate remedies. Within their constitutional parameters, the Executive and the Legislature are responsible for enacting and implementing such policy measures as is in their wisdom considered appropriate for the people. The Judiciary has to be careful that it too does not stray from its function and usurp the authority and role of the Legislative Branch.”
This is a Justice of the Caribbean Court of Justice speaking.
“I reiterate that there is a fine line which the court must tread in these circumstances. On the one hand it must protect the citizens and guarantee the rights and freedoms which the Constitution proclaims; on the other, the court should not intrude into the preserve of the other branches of Government. For our democracy to operate effectively it has been said that it is necessary that a certain comity should exist between these three branches. Each should respect the role and function of the other. The court is subject to and must enforce laws passed by Parliament that are intra vires the Constitution. The executive should respect and obey the decisions and accept the intimations of the court. If this comity does not exist then the wheels of democracy will not turn smoothly. A jarring and dangerous note will resonate there from.”
“A jarring and dangerous note...” What we saw from the interpretation of Article 171 and 218 by our Chief Justice is in a sense intruding onto the territory of the Legislative Branch and it will create a lot of problems and I am urging that if we were now to get the option as you, yourself, mentioned, Mr. Speaker, only a couple of minutes ago, that we have to either approve the budget, as the learned Chief Justice mentioned, or disapprove it, we will be crippling and making destructive this country if we were to disapprove the thing in its entirety. We can then, as a result, see the sense of making reductions rather than disapproving the whole thing. That is why I am saying that an interpretation of Article 171 (2) (b) and (a) gives us the power to reduce the budget otherwise what could have been the meaning otherwise than reducing it? What could have been the meaning of our Standing Orders? I want to take objection to the argument made by Ms. Gail Teixeira when she indicated that after the Constitutional Reform Process we ought to have amended the Standing Orders. In the Constitutional Reform Process we never touched Article 217, 218 nor 219 and that set of Articles had been there since the Constitution in 1966 and all of those Standing Orders have been there since then so why do we need to ruin the Standing Orders by altering them.
I urge that cuts are permissible and that, in the context of Guyana, it is far better to have cuts than a total disapproval. Thank you very much.
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