Today’s article focuses on three events that made the news during last week. These are the Chief Justice’s ruling on Presidential term limit; the amendment to Article 222A of the Constitution to provide for the financial autonomy of certain constitutional agencies; and the enactment of new legislation on former Presidents’ benefits.
Chief Justice ruling on Presidential term limit
Last Friday, the Chief Justice ruled that the presidential term limit imposed by the 2001 amendment to Article 90 of the Constitution is unconstitutional unless it is approved by the citizens in a referendum. That article states that: (a) a person who acceded to the Presidency after the year 2000 is eligible for re-election only once; and (b) a person who acceded to the Presidency after the year 2000 and served therein on a single occasion for less than such period as may be determined by the National Assembly, is eligible for election as President only once.
The Chief Justice ruled that the approval of the people through a referendum is needed for placing term limits on the Presidency and that the 2001 constitutional amendment is invalid and without legal effect. In his ruling, the Chief Justice referred Article 164 (2)(a) of the Constitution which requires any Bill to amend to Article 90 to be supported by:
not less than two and not more than six months after its passage through the National Assembly, has, in such manner as Parliament may prescribe, been submitted to the vote of electors qualified to vote in an election and has been approved by a majority of the electors who vote on the Bill:
Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at a final voting in the Assembly by votes of not less than two-thirds of all the elected members of the Assembly it shall not be necessary to submit the Bill to the vote of the electors.
Subparagraph (a) refers to any alteration to articles 1, 2, 8, 9, 18, 51, 66, 89, 99 and 111. Since Article 90 is not listed in subparagraph (a), there is no need for a referendum since the Bill to amend article 90 was supported by two-thirds of the votes of all the elected members of the Assembly. The Chief Justice, however, justified his ruling by contending that the amendments to Article 90 “curtail people’s democratic choices” and offend declarations in Articles 1 and 9 that Guyana is a “democratic state” in which “sovereignty resides in the people.”
Former Speaker Raphael Trotman, who was a respondent in the matter, has signaled an intention to test the ruling “in the highest court because if allowed to stand it would really undermine the very constitutional framework of the country and put the entire country into a tailspin”. And in a letter to the editor, Prof. Justice Duke Pollard has the following to say in respect of the ruling:
The judgment is arguably tendentious, occasionally pleonastic, bereft of sustained rationality, and strangely and curiously, not to mention inexcusably, has eschewed the application of the required rule of statutory interpretation in construing the provisions of Article 1 of the Guyana Constitution, given the concatenation of genus-describing attributes employed therein….
In my respectful submission, therefore, the determination of our learned Chief Justice in Cedric Richardson v Attorney General and Raphael Trotman is irretrievably flawed and is likely to be overturned on appeal, given among other deficiencies, an arguable perception of bias by reference to the relevant provisions of the Bangalore Draft Principles and the Latimer House Guidelines on judicial conduct. In the ultimate analysis our constitution, the supreme law, relieved Parliament of the need to secure approval of Act No.17 of 2001 by referendum. And where the constitution has been expressed to be the supreme law as in Guyana, and has pronounced clearly, definitively and conclusively on an issue, as in the Proviso of Article 164(2) of the Guyana Constitution, no judge should dare to tread contrarily lest judicial determinations be unwittingly construed as trumping constitutional supremacy.
While this column would like to leave further comments on the Chief Justice’s ruling to our legal luminaries, it should be said that it is inappropriate for the adjudication of all constitutional matters to be placed in the hand of a single individual, regardless of how knowledgeable and experienced he may be in such matters. Besides the person has been acting in the position of Chief Justice for about a decade, which can have a negative impact on the independence of the judiciary. Given that the Constitution is the highest law of the land, it would have been more appropriate for a group of eminent judges to be involved so that any pronouncement would have the benefit of the collective view, as opposed to an individual one.
Financial autonomy for additional constitutional bodies
Article 222A of the Constitution provides for the financial autonomy of the following agencies listed in the Third Schedule: the Ethnic Relations Commission; the Human Rights Commission; the Women and Gender Equality Commission; the Indigenous Peoples’ Commission; the Rights and Child Commission; the Judiciary; and the Office of the Auditor General. Last Wednesday, the National Assembly approved of a Bill to amend the schedule to Article 222A to include the Chambers of the Director of Public Prosecutions, the Judicial Service Commission, the Public Service Commission, the Police Service Commission, the Teaching Service Commission, the Public Service Appellate Tribunal, the Public Procurement Commission, Office of the Ombudsman and the Guyana Elections Commission.
Article 222A states that in order to assure the independence of the entities listed in the Third Schedule:
(a) the expenditure of each of these entities shall be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention approved by the National Assembly after a review of the entity’s annual budget as part of the determination of the national budget;
(b) each entity shall manage its subvention in such a manner as it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices and procedures approved by the National Assembly to ensure accountability; and all revenues shall be paid into the Consolidated Fund; and
(c) the terms and conditions applicable to grants and donations destined for the entities shall be approved by, and disbursements shall be made through, such appropriate government agency or department as determined by the National Assembly.
In other words, the above entities are no longer considered budget agencies and do not require to have their budgets approved by the National Assembly by line items. They are given autonomy and flexibility to use the funds allocated to them as they see fit, subject to the provisions of Article 222A. This is a step in the right direction since in the past there were financial restrictions placed on the entities’ ability to efficiently and effectively discharge their mandates.
Placing a cap on former President’s benefits
It will be recalled that in 2009 the Former Presidents (Benefits and Other Facilities) Act was passed to provide for former Presidents to be eligible for a pension equivalent to seven-eighth of that of the salary of a sitting President. This in addition to other benefits, including to unlimited coverage for local and overseas medical treatment; utility services at their place of residence in Guyana; services of personal and household staff (inclusive of an attendant and gardener; services of clerical and technical staff; the provision of motor vehicles owned and maintained by the state; toll-free road and bridge transportation in Guyana; and an annual vacation allowance equivalent to the cost of two first-class return airfare tickets provided on the same basis as that granted to members of the Judiciary.
Given the size and state of economy, and with a per capita income of US$3,410 (second lowest in the Caribbean, except for Haiti), there has been a public outcry about the enormity of the benefits, especially when comparison is made to what prevails in other countries. This column is on record as having considered the benefits unconscionable and fully supports placing a cap on the above benefits.
In his presentation to the National Assembly to repeal the Former Presidents (Benefits and Other Facilities) Act of 2009, and to replace it with the new Act, the Minister of Finance referred to the words of the late President Cheddi Jagan who, at a CARICOM Heads of Government meeting, warned against “Cadillac-style” living in “donkey-cart economies.” The Minister further stated:
Were he alive, he would have been appalled and disgusted at the entitlements granted to former presidents that are embodied in Act 12 of 2009, which was assented to by one of his protégés. I believe that he would have applauded the contents of this Bill, which seeks to cure the ills of Act 12 of 2009, return a level of decency and civility to our domestic affairs and ease the financial burden placed on the treasury as a consequence of the Act.
Under the new Act, a cap has been placed on the benefits of a former President. These include limiting household staff to three persons; security personnel to two persons; and clerical or technical staff to three persons who must not be engaged in any political work; two vehicles to be owned and maintained by the State; and free medical attention and treatment or reimbursement of medical expenses incurred to $200,000 annually for self, spouse and children below the age of 18 years.
