President’s announcement of elections date did not comply with constitutional or legal requirements

We note the announcement by President Ramotar that he has named May 11, 2015 as the date for general elections. We are concerned however that the announcement did not address the status of the Tenth Parliament which was prorogued on November 10, 2014 nor did it comply with the constitutional requirement for the naming of the date of elections.

It is our view that the life of the Tenth Parliament can only come to an end by dissolution and the naming of the date for elections done by way of a proclamation.

Prorogation of the Parliament is done under Article 70 by proclamation and while the Constitution does not expressly so state, it is our opinion that a proclamation is required either to re-convene or to dissolve the Parliament. And in relation to the naming of the date for elections, article 61 of the Constitution explicitly requires a proclamation by the President.

If we can call attention to earlier years and specifically the 2011 elections, there were four proclamations as follows:

27 September: Dissolving Parliament.

27 September: Dissolving the ten Regional Democratic Councils (RDCs).

9 October: Setting 28 November as date for parliamentary elections.

9 October: Setting 28 November as date for election of members of RDCs.

It is our opinion that until similar proclamations are issued the announcement made by the President on Tuesday January 21, naming May 11 as the date for elections has no legal or constitutional effect. As citizens we find it totally unacceptable that the President in his rather extensive address did not discuss the issue of the Tenth Parliament, leaving the country in continuing uncertainty in respect of the Parliament and to his intention to comply with the requirements of the Constitution.

The President needs to remove the uncertainty and take the logical steps which the Constitution requires.

Alissa Trotz
Christopher Ram

Postings on website were misrepresented on TV programme

Stabroek News of January 16, 2015 carried a letter captioned ‘Informed speculation,’ in which Mr Kit Nascimento, sought to respond, in defence of Mr Winston Brassington, Chairman of Atlantic Hotel Inc, to an editorial in the newspaper of January 6, 2015 titled ‘Questions continue over Marriott deal, opening date.’

Mr Nascimento, who did not disclose any interlocking relationships with Mr Brassington, with the hotel company and with Guyana Power and Light of which Brassington is chairman, or with NICIL of which Brassington is the CEO, accused the Stabroek News of “introduc[ing] a new practice of journalism, the reporting of ‘informed speculation,’ to justify unsubstantiated, undocumented, unsupported reporting published as fact by his newspaper.” That accusation, language and all, would be quite appropriate to Mr Nascimento himself.

In a recent television programme ‘moderated’ and described by him as the “third broadcast programme on the progress and development of the Marriott Hotel,” Mr Nascimento in introductory remarks, said, “This week Tuesday … Mr Christopher Ram, on his personal blog, which was reported in the Kaieteur News …” The programme, clearly initiated and manipulated by Mr Brassington, included, in addition to him, the unsuspecting Project Manager of the Marriott Hotel construction and the Marriott representative in Guyana.

Having as his premise this fictitious blog, Mr Nascimento then proceeded to ask a series of leading questions, no doubt prepared with the extensive assistance of Mr Brassington, with Nascimento casually throwing in words like Ram “suggested” and Ram “implied.”

Had Mr Nascimento taken the elementary, responsible and professional step of verifying his assertions and allegations with my website he would have noticed (a) that the articles to which the Kaieteur News referred were posted in February 2013 – nearly two years earlier; (b) that never in the four-part series did I make any allegation, let alone a “serious allegation” that Marriott Hotel was a “cut price” hotel; and (c) that I did not say that the construction agreement did not provide for supervision.

I would not waste my time or that of readers to repeat the text of the four-part series of articles on beginning February 17, 2013 under the caption ‘Soul for Sale,’ which incidentally was a pun on the hotel and not Mr Brassington. Sadly, I am unable to describe Mr Nascimento’s moderation of the programme in the way that he sardonically did the Stabroek News editorial as “a new practice,” but would prefer to use his own formulation and describe his/Brassington’s programme as based on false, fabricated and fictitious information presented in a disgraceful, malicious, unethical and unprofessional manner.

Editor, everyone has a right to earn a living. But I am sure that accounting is not the only field that requires engagements to meet basic ethical and professional principles and that asks its practitioners to refuse contrived, orchestrated assignments regardless of the size of the fee dangled. When individuals violate these principles they devalue their profession. And when a profession is devalued, the wider society is also devalued.

Mr Brassington is aware that the Marriott articles on my website were two years old. But like the Stabroek News editorial they are as relevant today as they are factual. As an officer of a government company, Mr Brassington has a duty to respond to legitimate concerns and questions asked of his actions involving public resources. The use of ventriloquists using evasive tactics is not only cowardly but totally unacceptable.

Spending by government tests the limits of the Constitution

Even as Chief Justice (ag.) Ian Chang considers one major case alleging unauthorised public expenditure of over $4.6 billion between January and early June 2014 involving one article of the Constitution, another case is probably in the making over spending of further billions in violation of another article of the Constitution.

In the current action Leader of the Opposition Mr. David Granger seeks an order to halt unauthorised spending by the government and also for spending on programmes disapproved by the National Assembly to be stopped. The question has been raised why the action was not brought immediately when it became known in June last year that the Minister of Finance had authorised the spending of moneys expressly disapproved by the National Assembly. It is obvious that several billions more would have been spent since June 14 in similar circumstances.

The Attorney General Anil Nandlall, in defending the unauthorised spending by the Government has sought refuge in procedural points, and according to a press report claims that “the court cannot issue an order to stop all government spending not approved by the National Assembly as requested by APNU leader David Granger as there is no allegation that anyone’s fundamental rights have been breached.”

One man court
The action is being contested in the one-man Constitutional/Administrative Law Division of the High Court headed by Mr. Chang whose long period of acting as Chief Justice would itself make for a good test case of yet another article of the Constitution. Mr. Chang’s decision in the 2012 Budget cuts case has raised eyebrows among many sections of the public, not least for his strict, textual approach to judicial interpretation of the Constitution. Aggravating the situation is the fact that an appeal against that decision has been languishing in the Court of Appeal for more than one year casting a cloud of uncertainty and ambiguity over the whole administration of public financial management.

If there was a competent, independent and professionally qualified Auditor General the lack of urgency and questions about our courts would still not be acceptable. But to have the top level of the country’s judicial system displaying such tardiness in a matter of considerable constitutional, financial and economic significance makes one wonder whether our higher courts appreciate their role and responsibility for the mess in which we find ourselves. And to top it all the country is now operating with a suspended National Assembly which means that there is absolutely no parliamentary oversight of public spending which at the best of times is characterised by improper accounting, constitutional violations and corrupt practices.

Hopefully, the case dealing with 2014 spending will be settled soon, if only to lay down markers for future conduct and for its relevance to spending in the four months January to April 2015.

2015 spending
In Guyana the financial year is the calendar year but for some unexplained reason the Constitution allows the Minister of Finance up to the end of March to present the budget for the current year and allows another month for debate and approval in whatever form. To facilitate expenditure for these four months article 219 (1) of the Constitution grants the Parliament the power to make provision for the Minister of Finance to authorise the withdrawal of moneys from the Consolidated Fund to “meet expenditure necessary to carry on the services of the government of Guyana” (emphasis added) until the expiration of four months from the beginning of that financial year or the coming into operation of the Act, which ever is the earlier.

Parliament in 2003 passed the Fiscal Management and Accountability Act (FMAA) which sets out in some more details the authority for expenditure during the four-month period. That Act gives the Minister the power to issue month-to-month drawing rights “sufficient to fund the ongoing delivery of normal services of Government (emphasis added) in accordance with Article 219(1) of the Constitution.”

The amount however is restricted for each month in respect of each budget agency “to one-twelfth of the amount that was expended by that budget agency in the immediately preceding fiscal year…” A further restriction imposed by the FMAA is that the Minister cannot issue a drawing right in relation to a subject matter or for a purpose for which there was no appropriation in the immediately preceding fiscal year.

Ramotar’s indifference
In other words, there are several, serious restrictions on spending by the Minister during the next four months – regardless whether or not the National Assembly is re-convened, which is unlikely, or whether it is dissolved, which is more likely. President Ramotar’s indifference to serious matters makes him unpredictable but what is certain is that the prorogation proclamation of November 10, 2014 expires on February 10, 2015, i.e. six months since the end of the preceding session of the Parliament on August 10, 2014.

If the Constitution and the FMAA were to be respected and applied, the government can legitimately spend on salaries and wages, repairs and maintenance, pensions and utilities and other recurrent expenditure on existing programmes and projects but not to commence any new projects, incur and new capital expenditure, grant any subsidies or make any payments not related to the ongoing delivery of normal services of Government.

There are several developments that suggest that this is not an abstract question but a real, practical one. Offering evidence of a complete disregard for the Constitution and the FMAA, Cabinet Secretary Dr. Roger Luncheon announced that Cabinet has approved contracts valued at some $876 million even as President Ramotar was in India agreeing to significant borrowings from that country for expenditure in Guyana.

Connecting 2014 and 2015
There is considerable relevance between the current case and 2015. If the court’s decision is that the Minister of Finance exceeded his spending authority then it is reasonable to assume that such spending cannot be taken into account in calculating the one-twelfth of the preceding year expenditure. It would be stretching it indeed for any court in one breath to rule a spending as unauthorised and improper in one period and yet valid for the purpose of qualifying expenditure for another. Cynics might say that stranger things have happened but let us wait and see how the current case goes before allowing our cynicism to take hold.

The instinct of the PPP/C particularly since Bharrat Jagdeo became President has been to spend and spend and damn the Constitution. With the cavalier and opportunistic Nandlall as Attorney General and his strange notions of constitutionality that instinct has become a practice. With a poodle for Auditor General, no Public Accounts Committee and no National Assembly the temptation increases. With elections looming and electoral defeat more than a possibility that temptation will become irresistible.

Mr. Granger who brought the action now being argued in the court no doubt recognises the dangers of unrestrained public spending at this time. Unauthorised spending in 2014 carries over into 2015. The parliamentary opposition with its array of lawyers now freed of parliamentary duties ought to treat this matter as much as of national importance as of their electoral self-interest. Time is of the essence and urgent action is necessary.

Guyana as a nation of laws

I was more than a little bit surprised by the statement in Mr. Lincoln Lewis’ letter that “[Guyana] is a nation of laws”: (Stabroek News 08-12-14, Constitutional Conversation). At best, it is a compendious articulation of one of the aspirations in the Preamble to the Constitution of Guyana to forge a “… harmonious community based on democratic values, social justice, fundamental rights, and the rule of law.”

To suggest that Guyana has attained the status of a nation of laws is not only dangerously misguided but a complete contradiction of all that Mr. Lewis has courageously argued for decades. In fact, I do not think that Mr. Lewis believes that the rule of law prevails in Guyana.
Continue reading Guyana as a nation of laws

Bacchus’ excursion avoids the real issues concerning Nandlall

Attorney-at-Law Murseline Bacchus (S/N November 27), to defend Attorney General, Anil Nandlall, against irresistible inferences of illegality from his infamous telephone conversation with Kaieteur News (KN) senior reporter, Mr. Leonard Gildarie, takes us back to a case 184 years ago in feudal England.

Mr. Bacchus was purportedly responding to a report in the Kaieteur News of Thursday November 6, 2014, under the caption “The world is watching police investigation – APNU”.

In the article, Mr. Joseph Harmon, an Opposition frontbencher and himself an attorney-at-law, raised concerns about the capacity and integrity of the authorities to undertake an independent investigation into the telephone conversation in which Mr. Nandlall objectified women; solicited for sexual purposes, on behalf of an uncle, a reporter of the newspaper; confessed to restraining the same uncle from taking serious criminal action against the newspaper proprietor; admitted to corruption involving public funds, drew attention to the increased activity against KN following the accusation by KN’s proprietor that his vehicle (Nandlall) was engaged in taking photographs of the newspaper building; declared knowledge of [an] impending armed attack[s] against the newspaper and its staff, and referred to a deal involving the President with the proprietor’s wife over a tax evasion matter.

This was, of course, the same conversation in which Nandlall boasted of his blood descent from the ancient Hindu warrior caste, Kshatriya, and encouraged Mr. Gildarie to leave his current employer and join the “elitist’ press unit being set up by the Government.
Continue reading Bacchus’ excursion avoids the real issues concerning Nandlall