The Consolidated Fund is not a medical insurance pool for ministers and their families

The first hint that the government was financing cosmetic treatment for those close to the party arose out of Attorney General Anil Nandlall’s astonishing conversation with the Kaieteur News reporter a couple of months ago. What we did not know until we learnt of Pauline Sukhai’s designer mouth job was that the scheme might even extend to visits to the manicurist.

The health of every citizen is, of course, important and there should be no trivializing. Ironically, the health minister’s reimbursement of a medication bill for $1,000 does exactly that, which is regrettable since every employer has a duty to provide a minimum standard of health coverage for its employees. I believe too that a government has a duty to provide medical service to its people.

What I certainly do not subscribe to is the suggestion that the Consolidated Fund is some contrived pool of insurance for ministers, their families, their friends, members of the judiciary and ranking members of the Audit Office. Sadly, that is exactly how it now appears following the leak of information on the secret scheme operated by the Cabinet.

The publication of the information is a triumph of the people versus the state. That bit of enterprise is worth more that the entire budget of the Office of the Commissioner of Information. Predictably, the PPP/C assumed the role of victim when the information was revealed by our more enterprising media. Happily, what the PPP/C did of course was to confirm the veracity of the information and plead then patient confidentiality to justify their rape of the public purse.

I believe the reporting of the information by the press reflected responsible and commendable journalism. I saw nothing to support the claim of breach of patient confidentiality but rather I saw a significant step in support of whistleblowing legislation. Later this week too, the press provided us with information on a scheme by the Cabinet to transfer money properly payable into the Consolidated Fund to a project under the control of the Housing Ministry. The press played a big hand in causing the government to rethink its position and at week’s end it seemed to be totally confused. Two strikes for the press.

It was perhaps coincidental but it was July last year that I had cause to write a letter to the press in which I questioned the role of Cabinet in adjudicating over the health issues of citizens. My letter was prompted by the death of a family member, 57-year old Basdeo Gobin, who died while his application for assistance languished among Cabinet’s papers. The letter was carried in the Stabroek News of July 21, 2014 under the caption ‘Why does Cabinet have to deliberate on cases of persons needing urgent medical help?’

The same Cabinet that failed to respond to a request for a contribution to the cost of a heart operation which might have saved the life of a poor man, could pay for all sorts of vanity expenditure for ministers and senior party members. This is socialism that even George Orwell could not predict: where all people are equal, some are more equal than others, and a handful are more equal than all combined.

On the list of beneficiaries are the Prime Minister and his wife, ministers, former ministers, presidential advisers, senior government auditor and the wife of a minister, a sitting judge of the Court of Appeal and the country’s attorney general. Despite all the questions asked, no one has put in the public domain the rules and the procedures for the government medical assistance scheme and indeed the relationship between that scheme and the medical scheme offered by the National Insurance Scheme.

I am aware of the convention that judges do not engage in public exchanges and I do respect that. But I believe that when a sitting judge seeks out discretionary benefits from the executive, whether in the form of medical assistance or other facilities, they run the serious and real risk of compromising not just themselves but the entire judiciary.

My question to Justice B S Roy is whether he considered the implications of accepting discretionary benefits from the Cabinet of Guyana. I would ask the same question of Mrs Gitanjali Singh, the Deputy Auditor General in the Audit Office, who the public believe is already compromised by remaining with the Audit Office while her husband is the Minister of Finance.

Additional questions I would have for Mrs Singh are whether a) she is aware of any documentation to regulate the operation of the scheme; b) the specific source of the funds; c) the specific bank account from which the payment is made; d) confirmation that it is not one of the many slush funds operated out of the Office of the President; and e) whether she can give the public a single instance of the annual report of the Audit Office commenting on this scheme.

I would also ask the following questions of both Justice Roy and Mrs Singh:

– Would they have accepted the benefits if they knew that the information would become public?
– Was the right of access to the scheme part of their compensation package?
– Should such payments not be covered by personal insurance?
– Did they decide not to have medical insurance?
– Do they consider it fair to expect taxpayers to meet their medical bills because they choose not to have medical insurance?
– What was the procedure they employed in accessing the benefits?
– Was the amount paid the full amount spent by them?
– Was it a requirement that they meet part of the costs of their medical expenses?
– Do they believe that the scheme should be revamped?
– Do they believe that every person should have the same rights and privileges under the scheme?

Finally, a question to Mr Nandlall. He had said in the press that he had paid back the $4 million he received from the scheme. Would he confirm that he has in fact done so and explain why he would return money to which he was entitled?

GECOM and its interesting numbers (updated)

Introduction
The Elections body Guyana Elections Commission has announced that the number of eligible voters on the Preliminary List of Electors (PLE) for the upcoming May 11, 2015 elections stands at 567,125. As a percentage of the 2012 census population of 747,884, the number of persons eligible to vote and therefore age 18 and over is 75.83% suggesting that those under age 18 represents 24.17%. Since the November 2011 elections the number of persons on the preliminary voters list has increased by over 75,000 persons or by 15.3%.

The current PLE as a percentage of votes cast in 2011 is some 164%. These numbers are worrying when measured against comparable benchmarks or against any local indicator.

Guyana is categorised for purposes of the UN publication, World Population Prospects: The 2012 Revision under “Other Less Developed Countries”. Among that group across the world – including the rich countries with an aging population – the percentage of the population under age 15 is 26%. Specifically, the publication estimates Guyana as having a population under age 15 of 36%.
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The AG’s interpretation of the court’s decision was extremely self-serving

Attorney General Anil Nandlall has regaled the media with a verbose statement on the decision by acting Chief Justice Ian Chang in the case brought by opposition leader David Granger challenging the legality of the spending of $4.6 billion and programmes expressly disapproved by the National Assembly during the 2014 budget debate. Mr Granger sought several declarations that the expenditure was illegal, one order, and a conservatory order staying (stopping) all spending by the government on programmes disapproved or not authorized by the National Assembly until the matter was heard and determined by the court.

According to Mr Nandlall the only matter before the court was the application for a conservatory order and that the hearing and determination of the substantive action was for consideration later. On that basis, Mr Nandlall now argues that the interim conservatory order sought by Mr Granger was the only issue on which the court could properly pronounce.

That is an extremely self-serving and dishonest interpretation of the court’s decision. AG Nandlall did indeed successfully argue against a conservatory order which the court had no option but to accept. The action by Mr Granger’s lawyers was brought in December 2014 to halt certain expenditure for the year. Mr Nandlall is now gloating over that refusal.

Sadly, Mr Nandlall either did not understand the decision or is unfamiliar with the principle of law involved in the case.

There is no dispute of facts in this case, a point made by the court on more than one occasion in its written decision. Indeed it was the Minister of Finance who himself admitted to the spending when he brought to the National Assembly for approval the statement of excess for the $4.6 billion spent on programmes expressly disapproved earlier by the National Assembly.

Applying the constitutional provision to the undisputed facts the court found that “it is clear that the prohibition contained in article 217 (1) (b) of the Constitution was infringed.” That prohibition is against any withdrawal from the Consolidated Fund except as authorised by an Appropriation Bill passed by the National Assembly and assented to by the President.

The principle that guided the court in arriving at its decision on both the interim question relating to the Conservatory Order and on the substantive issue of the spending is well established and reported and that is, when a matter of pure law is raised the court should deal with the matter finally and definitively.

Ostensibly Mr Nandlall wants the substantive matter to go through another round of meaningless arguments completely unmindful of the consequential and “complete waste of judicial time” hearing the “same arguments in law rehearsed all over again.”

Confronted with a finding by the Constitutional/Administrative Division of the High Court that he provided bad advice to the government resulting in the unconstitutional, and unlawful and unauthorised expenditure of $4.6 billion up to June 16, 2014, it would have been wise for Mr Nandlall to take heed of the aphorism that the first thing you should do when you are in a hole is to stop digging.

I believe that Mr Nandlall dreads having to confront the disclosure – which will come sooner rather than later – of the full extent of the unconstitutional and unauthorised expenditure between June 17 and December 31, 2014 which is likely to be considerably more than the $4.6 billion spent up to June 16.

His statement may also be an attempt to buy time for the government to spend billions of dollars during the period January to April 2015 using as the base the 2014 expenditure enlarged by unlawful expenditure.

Defying what is described as trite law, Mr Nandlall in this case argued that the doctrine of estoppel operates against the constitution and the law! Clearly not wishing to embarrass the office of Attorney General, the court graciously ignored the point.

Had such a mindless utterance derived from a junior attorney, he would have been laughed out of the court. That it should come from the country’s Attorney General is a measure of Guyana’s human resource tragedy.

As Attorney General, Mr Nandlall must be aware of the mechanisms available to him as the attorney for one of the parties. He should be availing himself of those rather than parading on the political stage.

Twelve priorities for the coalition

I extend to the APNU and the AFC congratulations on the historic agreement to contest the upcoming elections as a joint entity. Whilst I am disappointed that the negotiations appear to have centred not around the programmes necessary to restore to Guyana good governance, democracy and the welfare of the people but around how the fruits of electoral success will be divided, I am yet pleased with the outcome.

The decades-old domination first by the PNC and then by the PPP have validated the age-old saying that “power corrupts, and absolute power corrupts absolutely”. Of course, power also reveals and it would be interesting to witness how those who had not previously held political power would operate in any new dispensation following the May 11, 2015 elections.

I am not unmindful of the fact that the AFC’s Mr. Moses Nagamootoo served as a minister in the PPP government and that the party’s leader Mr. Khemraj Ramjattan was a leading member of that party prior to leaving to form the AFC.

I believe I share with my fellow Guyanese the optimism that the cloud of lawlessness, corruption, favouritism, nepotism, abuse of office and the pursuit of personal wealth which appears to have afflicted many in the ruling class, will now lift. I am writing this letter to share with the leadership of the APNU and the AFC my own thoughts on some of the priorities which I would like to see established should they win the elections and form the government.

Before I do so, however, I wish to seek clarification on one of the issues on which agreement was announced. The APNU it is stated will have the presidency and one position of Vice-President while the Prime Minister will come from the AFC which will also have two positions of Vice-President. Under the Constitution the Prime Minister is a Vice President, “and he shall have precedence over any other Vice President”: Article 102 of the Constitution.
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Justice Chang’s decision on disapprovals

Introduction
Chief Justice acting Mr. Ian Chang last Friday gave his decision on the case brought by Mr. David Granger, Leader of the Opposition in the matter concerning the spending of money on programmes contained in the 2014 Budget expressly disapproved by the National Assembly. Two men not unknown to take their professional image very seriously, Attorney General Mr. Anil Nandlall and the shadow Attorney General have been on television both claiming victory! Yet, notwithstanding the highly technical discussion on questions about declaratory orders as opposed to conservatory orders, some things are very clear:

1. That the Minister of Finance acted in violation of the Constitution and the Fiscal Management and Accountability in spending the sum of $4,553 million for purposes specifically disapproved by the National Assembly. Note that this spending was up to June 16, 2014

2. That the Court has no jurisdiction to restrict any authority granted on the executive by the Constitution or an Act of Parliament since “to do so would be to violate the doctrine of the separation of powers which indubitably inheres in the Constitution of Guyana.”

3. That the Minister cannot use one article of the Constitution to engage in spending that is disapproved under any other article.

4. That support of expenditure in 2012 and 2013 in similar circumstances did not mean that no court challenge could be brought in respect of 2014.

5. That the breach of constitutional authority regarding expenditure in 2014 is not a proper basis to fear that the government would exceed the limits of their authority in respect of any other period.

6. That the Court is more concerned about form rather than substance. There can be no other explanation for the decision by the court to deny on procedural grounds an application in respect of expenditure on disapproved programmes for 2014 that the court considers to be in violation of article 219 (3) of the Constitution and the Fiscal Management and Accountability Act 2003.

7. That having found that the Minister of Finance violated the Constitution and the law the court passed the buck regarding any cure or sanction by ruling that those are matters for the internal affairs of the National Assembly!
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