Dear Editor,
Whatever the motives behind Mr Anil Nandlall’s frequent contributions to the letter columns on constitutional issues, they merit use as fodder for public discussion. His latest foray, published in SN 2nd July, targets the constitutionality of the proposed bill now before parliament to amend the Former Presidents (Benefits and other Facilities) Act of 2009. This legislation, passed amid controversy by a PPP parliamentary majority, bestows benefits to our former presidents, such as entitlement to vehicles of unspecified type and amount, unspecified number of clerical and technical staff, and medical facilities for themselves and spouses and an unspecified number of dependants.
The 2015 bill intends to put time and numerical limits on these benefits. Mr Nandlall contends in his letter that these limits or caps are unconstitutional and invokes three constitutional provisions in support: Article 222 (Remuneration of holders of certain offices), Article 142 (Protection from deprivation of property), and Article 149A (Right to work). Based on these articles, Mr Nandlall claims the 2015 bill fails muster because it reduces benefits already given and received, confiscates property without compensation, and interferes with the right to work of former presidents (as the proposed new law will stop paying benefits to a former President should he engage in business, trade or paid employment).
One of the reported counterarguments to Mr Nandlall and his party’s position asserts that the constitution covers only pensions or gratuity (Article 181(2)) and therefore new benefits cannot be introduced without a constitutional amendment. I suspect, however, that the absence of the word “only” to restrict the object of the verb “shall receive” in the said article could support a more generous interpretation of the types of things a former president can receive. In this, it has to be assumed that legislators know the difference between “shall receive” and “shall receive only”.
But even if the constitution allowed all of the pensions, salaries, allowances and benefits for former presidents, the question in my mind is simply whether our supreme law could be interpreted to mean that these could be limitless in cost in the first place, as mandated in the 2009 legislation.
Mr Nandlall clearly implies that the constitution does. I strongly differ because our constitution also embraces and supports principles and mechanisms for sound financial discipline and management. Article 118 (2), for example, highlights the need to ensure “financial control and discipline” in the financial affairs of the State. But more so, the public or national interest is profoundly injured should monies in our Treasury be spent on unaffordable or narcissistic excesses, should any of our former presidents desire to live the life of the rich and famous. Any sensible interpretation of the constitution could not therefore conclude that the document protects or approves limitlessness as a financial management principle, and wantonness in financial expenditure.
The drafting of any subsidiary legislation, it follows, that attempts to put dollar values to Articles 181 and 222 must be guided by principles or standards to avert either of two absurd extremes: on one hand, limitlessness or excessiveness in salaries, pensions and benefits and, on the other, stinginess and meanness in what we give our former presidents. What types and levels of benefits, etc are reasonable, appropriate and affordable can readily be determined by local circumstances and commonly-used formulas and practices. The 2015 bill could therefore stand as it restores balance among several constitutional provisions and principles.
That said, Mr Nandlall’s additional contention that it is a violation of the constitutional right to work to stop paying benefits (even if appropriate and reasonable, I am adding) to a former President should he engage in business, trade or paid employment is a quite separate issue. Its resolution, one way or the other, would not affect the broader issue of caps on benefits. I can only guess, but if the thinking of the government is that pension and benefits are enough that a former president need not work or open a business, I suggest that some more effort may be required to fine-tune the guiding principles on this matter.
Yours faithfully,
Sherwood Lowe
