Former Presidents Bill will not apply to former presidents or current one

Dear Editor,

The Former Presidents (Benefits and Other Facilities) Bill 2015 will not apply to former presidents nor the current president.

This Bill seeks to repeal the Former Presidents (Benefits and other Facilities) Act 2009 and in its place, install a regime of benefits and other facilities to be accorded to executive presidents after they demit office.

The first issue which I wish to address, is to whom this Bill would apply if it is enacted into law. In my humble view, the Bill, if it becomes law, will not affect nor apply to the benefits and other facilities which accrue to any former presidents under the Former President (Benefits and Other Facilities) Act 2009.

I wish to further submit that it will also not affect or apply to President David Granger who is entitled to the benefits and facilitates under the 2009 Act, on the same basis and for the same reasons as former presidents.

I am of the considered view that if enacted, the 2015 Bill cannot in law, retroactively or retrospectively affect the entitlements conferred by the 2009 Act. These entitlements have already accrued to the former Presidents. In the case of Mr Granger, as will be explained below, these benefits also accrued to him the moment he assumed office, because when he did so, the 2009 Act was in force. However, they will only become due when he demits office. The 2015 Bill, therefore, can only operate prospectively and will only apply to presidents who assume office after Mr David Granger.

More significantly, any attempt to utilize this Bill as an instrument to deny and deprive any or all of the aforementioned persons their entitlement under the 2009 Act, would be unlawful, unconstitutional, null, void and of no effect.

I set out hereunder the reasons for my aforesaid conclusions.

I will begin with Article 222 of the Constitution. It provides thus:

222 (1)  “There shall be paid to the holders of the offices to which this article applies such salaries and such allowances as may be prescribed by or under any law or….”

222 (2)  “The salaries and allowances payable to the holders of the offices to which this article applies are hereby charged on the Consolidated Fund”.

222 (3)  “The salary and allowances payable to the holder of any office to which this article applies and his or her other terms of service shall not be altered to his or her disadvantage after his or her appointment and, for the purposes of this paragraph, in so far as the terms of service of any person depend upon the option of that person, the terms for which he or she opts shall be taken to be more advantageous to him or her than any other terms for which he or she might have opted”

222 (4)  “This article applies to the offices of President, Speaker, Deputy Speaker, Clerk and Deputy Clerk of the National Assembly, any Judge of the Supreme Court of Judicature, members of the Elections Commission, the Public Service Commission, the Teaching Service Commission or the Police Service Commission, the Ombudsman, the Director of Public Prosecutions, the Auditor General and the Commissioner of Police”.

The fact that the “salaries and allowances” of these office holders are charged upon the Consolidated Fund signifies that they are not subject to the approval (or disapproval) of the National Assembly. It is but indicia of the level of protection and the security of tenure which the constitution accords to these office holders.

Moreover, Article 222(3) specifically protects these salaries, allowances and terms of service from alteration to the detriment of the office holder after his or her appointment. As it relates to Presidents, I submit that the benefits and other facilities conferred by the 2009 Act are captured in these “allowances and terms of service” to which Article 223 makes reference. It is clear therefore, that while the remuneration package of these office holders can increase, no diminution is permitted even after they would have left office.

As it relates to Mr David Granger, he assumed office while the 2009 Act is in force. That Act guarantees him certain facilities and benefits which will accrue to him when he ceases to hold the Office of President. Article 222(3) protects those facilities and benefits from any alteration to his detriment. The 2015 Bill cannot and does not affect those facilities and benefits.

Additionally, article 142(1) of the constitution provides “No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired …” without the prompt payment of adequate compensation.

For the purpose of the constitution, the courts, both in Guyana and throughout the Commonwealth, have given the widest possible definition to the term “property”. Property has been defined to include money, choses in action, rent charges, mortgages, easements, shares, or anything that has economic value.

Every single entitlement

enumerated in the 2009 Act as a benefit or facility to a former president, is capable of being converted into monetary or economic value. These entitlements, therefore, are the legal property of those to whom they statutorily accrue and Article 142 of the constitution prevents the repeal of the Act by this 2015 Bill from having the effect of compulsorily acquiring the property which the 2009 Act confers, without prompt and adequate compensation.

Having established that the 2015 Bill will only apply to presidents post-David Granger, I am of the view that some of its clauses are infected with the virus of unconstitutionality and accordingly are liable to be struck down by a court for want of constitutionality.

Clause 5 provides: “a former President shall cease to be entitled to the benefits and other facilities provided under section 3, if the former President engages in business, trade or paid employment…”

Article 149A guarantees every citizen of Guyana the right to work without hindrance as a fundamental right and freedom. It provides thus:

Art. 149A             “No person shall be hindered in the enjoyment of his or her right to work, that is to say, the right to free choice of employment”.

It is excruciatingly plain that clause 5 collides with article 149A and will be unconstitutional.

Secondly, the Bill confers certain benefits on “a child” of a former president and its definition of “child” is confined to a child born in or out of wedlock. However, our law and constitution contemplate another category of children – those who are adopted. This Bill discriminates against adopted children. Article 149 guarantees protection against discrimination. It provides thus:

Art. 149 (1) “Subject to the provisions of this article –

(a)          No law shall make ay provision that I discriminatory either of itself or in its effect; and

(b)          No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority”.

Additionally, Article149D provides that the state shall not deny to any person equality before the law or equal protection and benefit of the law. It defines equality to include “the full and equal enjoyment of all rights and freedoms guaranteed by under this Constitution or any other law”.

I submit that in so far as the Bill excludes adopted children, it violates Articles 149(1) and 149D and will be unconstitutional.

 

Yours faithfully,
Mohabir Anil Nandlall
Attorney-at-law

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