Dear Editor,
Recently some observers and political commentators have expressed concern and frustration over the apparent deadlock facing the Anti-Money Laundering/ Countering the Financing of Terrorism (AML/CFT) legislation in Parliament. In fact, the problem turns on the government’s insistence on seeking to treat constitutional obligations, such as provisions for judicial independence, as favours they are granting the opposition. The two opposition parties have been trying to find a way out of the deadlock and a fortnight ago suggested a number of locked step moves to the President and his team. The steps were intended to ensure that commitments pledged by each side are honoured – a reflection of the lack of trust in the government and the value of its assurances especially as regards constitutional obligations. The proposals were rejected. President Ramotar is reported to have announced over the weekend that he is prepared to compromise on the matter of the authority which the APNU proposed to oversee the Financial Intelligence Unit (FIU) and the AML/CFT process as a whole.
At this point in time, one of the main stumbling blocks to the passage of the AML legislation consists of the bills passed by the Assembly. The President is standing on the principle that a set of bills before him for assent are unconstitutional. The opposition believes that this is not merely a question of incompetence on the part of his advisers but sheer political manipulation and cynicism. The constitutionality or otherwise of legislation is a matter for the Supreme Court of Judicature, the guardian of the constitution, to decide.
At the heart of the problem is the refusal of the PPP to put in place mechanisms to correct unconstitutional provisions in the Fiscal Management & Accountability (FM&A) Act of 2003 in particular and the insistence of the government in controlling the key institutions that are supposed to be independent and to protect our fundamental rights. If the President assents to those bills legitimately passed by the House, it will reduce the scope for manipulation of key state institutions and the overnight generation of new regulations such as the recently revealed, ‘ministerial protocol’, as articulated by the Commissioner of Police designate. The device is obviously designed to place PPP ministers above the law. All of this demonstrates amply just how much the PPP has undermined responsibilities of the Commissioner of Police, not to mention the rule of law.
There are two sets of issues involved. First, as regards the Constitutional Amendment Bill, the President has actually failed to act within the 21 days the constitution provides for him to send his reasons for refusal to the Assembly. Although the PPP and other interested parties such as the Private Sector Commission (PSC) labour under the misapprehension that the government has formally signalled that all these bills are unconstitutional, the President has only written to the Speaker with regard to three bills. The deadlines for the withholding of assent on the Constitutional Amendment Bill and the Fiscal Management Accountability (Amendment) (FM&AA) Bill 2013, have long expired. The House has never even been granted the courtesy of an excuse from the President for his inaction. In other words, whilst speaking to unconstitutionality of the bills, the President has himself been creating breaches of the constitution by failing to respond formally within 21 days.
When the current constitution is amended in future it will surely need to address this type of behaviour by the presidency, ie either claiming that the bills have not been ‘received’ or merely staying silent on what has been received. Those bills should be assented to without any further delay.
A second set of bills comprises the FM&AA 2013. The issue of the alleged unconstitutionality of these bills is simple. The letter sent by the President as regards the former Presidents Benefits Bill and the FM&AA 2013 are, I believe, gravely mistaken. Putting that aside for the moment, the President has suggested that specific clauses in or parts of the bills are unconstitutional. There is a case therefore to have these elements removed via negotiation or put to the courts for a determination. In spite of grave concerns about the ridicule which recent decisions of the courts on constitutional matters have caused to be unfairly heaped on the institution, I personally would have no difficulty with an approach to the courts. In the case of the budget 2013 cuts and the Appropriation Bill, the President assented to the legislation and then, claiming that amendments reflected in the Appropria-tion Act were unconstitutional, appealed to the courts to allow monies not approved to be spent. Although he claimed that the act was unconstitutional he signed it and spent what it authorised and did not authorise.
In other words, his actions can be interpreted as implementing what he regarded as legal and ignoring what he claimed was unconstitutional.
We should therefore not allow the President to play games with the public on constitutional matters. What is good for the goose is good for the gander.
Let him sign the bills and then challenge that part with which he has a difficulty.
Since the complaints set out by him concern a few specific clauses, the courts should be asked to strike down those elements, if indeed they offend the constitution. The entire set of clauses in the bills do not need to be held hostage to the AG’s flawed interpretation of the law.
Ultimately, if the local courts fail to provide a satisfactory decision or to do so with dispatch the Caribbean Court of Justice (CCJ) can be asked to look at the matter. It has jurisdiction to hear such a matter.
If we, the APNU, understood the complaint we could amend the legislation to remove the offending provisions. Unfor-tunately we do not accept these and cannot simply drop them. We will not accept, for example, that after a President leaves office he can simply adopt an unlimited number of children and charge their education and medical expenses, for example, to the state. We have already seen the effect of such uncapped benefits on the behaviour of one former President as regards medical expenses. There is considerable public outrage over the apparent extravagance and questions about who, if any official, authorized such expenditures and deemed them reasonable. Who can reasonably argue therefore that there should not be known limits to the expenses a former president can a charge to the Consolidated Fund when he is already entitled to a guaranteed presidential pension worth millions of Guyana dollars each month?
But that is neither here nor there at this point in time.
I assume that the Public Procurement Commission (PPC) and the local government issues can be resolved with a little bit of imagination, since the PPP and government have voted for these in the past and the excuses for not implementing them are hardly defensible.
The choice before the President, and ultimately the people of Guyana, is therefore simple. Mr Ramotar can act on the opposition demands and assent to the bills by whatever device the constitution affords as well as honour constitutional obligations as regards the local government bills and the PPC.
1. The worst that can result from this would be that President Jagdeo will get a few thousand dollars less than he voted for himself before he left office. It will make little difference to his overall fortune and wealth but it will allow the AML legislation to go forward. It ought not to lead to a constitutional crisis and no one else can be adversely affected. The process of launching local government elections can be launched after nearly 20 years of stagnation. The processes of Caricom will be preserved.
2. If this is not done there will be no passage of the amended legislation and no new AML Act. The consequences for the country as a whole as well as the Caribbean people and the Caribbean Community, will be very painful. Everyone, money launderers and the innocent, old and young, rich and poor, will be adversely affected. The political fallout will be grave and extensive.
The choice therefore lies between unnecessary additional resources for Mr Jagdeo and the continuing ability of the President to undermine the independence of the judiciary on the one hand and, on the other hand, the future well-being of the Guyanese people as a whole.
The choice ought not to be a difficult one.
There has never been a more stark choice facing our country. Either we become more vigilant so as to ensure respect for our rights or we sit on our hands and allow ourselves to be ruled by control freaks using subterfuge and misinformation, ignorance and ethnic division. Whichever way, the country will get the government it deserves.
Yours faithfully,
Carl Greenidge
