The anti-corruption court in Pakistan has convicted and sentenced former Prime Minister Nawaz Sharif to seven years’ imprisonment for failing to justify the source of income relating to his ownership of a steel mill in Saudi Arabia. He had earlier been convicted and sentenced to ten years’ imprisonment in connection with the purchase of high-end apartments in London. One recalls the conviction and sentencing of former Brazilian President Lula da Silva to 12 years’ imprisonment for accepting a gift of a beachfront property from an engineering firm in exchange for help to secure contracts from the State-owned oil company Petrobras; and the impeachment and removal of another former Brazilian President Dilma Rousseff for breaching budget laws. The current President Michel Temer is also facing corruption charges for receiving money from a meat-packing company.
Here in Guyana, Prof. Clive Thomas of the State Assets Recovery Agency (SARA) spoke of the need to have legislation in place requiring persons alleged to possess unexplained wealth to prove their sources of income for such wealth, or face prosecution. The Guyana Revenue Authority has the power to raise arbitrary assessments based on lifestyle audits on persons where there appears to be a mismatch between their assets and their sources of income. This is necessary from a tax evasion point of view, which is a criminal offence. However, additional measures are needed for public officials who, by virtue of the positions they hold, may be tempted to indulge in corrupt behaviour, enriching themselves at the expense of the State and its citizens. We support Prof. Thomas’s call which we ourselves had recommended in several of our columns. The current Administration, as part of its action plan for its first 100 days in office, had listed establishing an Investigative Commission on Corruption as one of the 21 actions to be undertaken. To date, no effort has been made to so.
The news out last week on Christmas Day is that a new political party, A New and United Guyana (ANUG), has been formed to contest the national elections constitutionally due by 21 March 2019, following the recent vote of no confidence in the Granger-led Administration. The key personalities behind the formation of ANUG are: Senior Counsel Ralph Ramkarran (former Speaker of the National Assembly); Dr Henry Jeffrey (former Minister under the PPP/C Administration); Attorney-at-law Timothy Jonas; and businessman Terrence Campbell – all of whom are highly respected individuals. The main focus of ANUG is on constitutional reform and shared governance. ANUG has also given the firm commitment that it will not join forces with the two main political parties, the PPP/C and the PNCR, which have dominated Guyana’s political landscape since the 1950s and which have drawn their support overwhelming from the two major ethnic groups.
The announcement of the formation of ANUG followed an earlier one from a leading figure from the Amerindian community, Mr. Lennox Shuman, who has indicated that the launching of the Liberal and Justice Party (LJP) would take place on 10 January 2019. ANUG has also stated that it will be reaching out to the leaders of LJP to explore the possibility of working together.
Disagreement over the Ruling on the No Confidence Vote
Two Fridays ago, following a debate in the National Assembly of a motion of no confidence in the Government, a vote was taken, which saw the approval of the motion by a one-vote majority. Article 106 (6) states that: ‘[t]he Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly [emphasis added] on a vote of confidence’. A total of 33 elected members voted in favour of the motion while 32 voted against it in the 65-member National Assembly. Therefore, all the members had an opportunity to cast their votes on the motion, and the majority, i.e. 33 to 32, voted in favour. Accordingly, the Speaker ruled that the motion of no confidence in the Government has succeeded.
Disagreement has since surfaced as to the number of elected members that should make up the majority in the National Assembly. Some have argued that such number should be 34 or more and not 33 because mathematically one-half of the Assembly is 32.5. Since there cannot be one-half of a member, 33 members make up half of the Assembly and therefore the majority of the Assembly would be 34 or more and not 33. However, the Constitution refers to ‘the majority of all the elected members’ and not ‘majority of the Assembly’.
At the organizational level, the composition of boards and committees in most cases reflects odd numbers to avoid the possibility of a tie when votes are taken on particular issues. The same principle applies at the national level, and it is perhaps for this reason that the framers of our Constitution chose 65 as the number of elected members of the National Assembly, instead of, say 64 or 66. In the Vanuatu case cited, the situation is different in that the number of Parliamentarians was 52. Therefore, 27 (i.e. half plus one) would be considered a majority and not 26.
Critics of the Speaker’s ruling further argue that a vote of no confidence is different from voting on a Bill or motion because the latter requires a majority of elected members present whereas the former requires all elected members to be present. While it is appropriate for the Constitution to place greater importance on a motion of no confidence, we do not consider this distinction an important consideration in determining whether the vote of no confidence has succeeded.
In accordance with Article 106(7):
The Government shall remain in office [emphasis added] and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.
As we did last week, this Column urges all parties involved, indeed the public, to accept the ruling of the Speaker, so that we can move smoothly to the next stage of having elections in three months’ time. Regardless of how we feel about the Speaker’s ruling, the national interest dictates that this be done. Seeking legal options in an attempt to overturn the Speaker’s ruling would be time-consuming and is likely to create a constitutional crisis and ensuing tensions, if the deadline of 20 March 2019 is overrun. The least that can be said at this stage is if the present Administration believes that it has a good track record on governance, transparency and accountability vis-à-vis that of the previous Administration, it should not be afraid to go into elections and let the electorate decide whether or not it should continue to hold office. Any other arrangement is likely to be viewed as an attempt to undermine the democratic process and thwart the will of the people.
Approved 2019 Estimates of Revenue and Expenditure
We have to count our stars that the National Assembly approved the 2019 Estimates of Revenue and Expenditure before the vote of confidence was taken. Had the reverse happened, we would have found ourselves in a position similar to that of 2015 when there was no budget in place until eight months into the year as a result of the prorogation and subsequent dissolution of Parliament, and the holding of elections. In that year, the former Minister of Finance authorized withdrawals from the Consolidated Fund significantly in excess of what the Constitution and the Fiscal Management and Accountability (FMA) Act allowed him to do. He also authorized withdrawals from the Contingencies Fund which did not satisfy the criteria laid down by the Constitution and the FMA Act for such withdrawals. Judicial intervention was sought, and the Chief Justice ruled that Minister violated the Constitution. The extent of breach of budget laws that led to the impeachment and removal Brazilian President Dilma Rousseff pales in comparison to what happened in Guyana in 2015.
Utilising Budgetary Allocations
Given that its mandate expires in three months’ time, the Government has to exercise extreme caution in how it utilises the budgetary allocations for 2019 to enable any new government to have enough financial resources to manage the resources of the State for the remaining nine months. We are indifferent as to the outcome of the elections and whether or not there would be a change in government. However, out of an abundance of caution, we make the following suggestions.
Current Expenditure: For Ministries/Departments/ Regions, the allocations (known as allotments) for each the first three months should be not more than one-twelfth of their 2019 budgets. In this regard, budget agencies should adjust their monthly plans to ensure that they do not exceed their allotments. Support for this approach can be found in sections 27 and 36 of the FMA Act. Section 27(2) provides for the Minister to ‘direct allotments to be made at the level of expenditure classification other than set out in the applicable appropriation Act’.
On the other hand, Section 36 caters for a situation where a budget is not in place. In such a situation, pending the approval of the budget, monthly allotments are not to exceed one-twelfth of the previous year’s budget, except for payments for multi-year contracts. We do have a budget in place for 2019. However, given the present circumstances with which we are faced, it would be desirable to apply the one-twelfth rule for current expenditure. Constitutional agencies should, however, be given their allocations in the normal manner.
Capital Expenditure: No new capital expenditure projects should be initiated until after the elections. However, spill-over contracts, such as the East Coast Road Rehabilitation Programme and the Cheddi Jagan Airport Expansion Project should continue, and payments made in accordance with the agreed schedules.
Public Debt: No new debts should be incurred until after elections. However, the repayment and servicing of existing debts continue in the usual manner.
New Agreements: No new agreements should be entered into in the first three months, which have the effect of binding the State.
