Category: Letters to the editor

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Mr. Brummell’s purported appointment as acting Commissioner is unconstitutional

From the press, the public has learnt the Mr. Leroy Brummell DSM has been appointed as acting Commissioner of Police. It seems, once again, that the country is being treated with casual if not reckless disregard with respect to constitutional positions.

Article 211 of the Constitution provides for the Commissioner and Deputy Commissioner of Police to be appointed by the President after meaningful consultation with the Leader of the Opposition and the chairperson of the Police Service Commission. Specifically, Article 211(2) makes the appointment of an acting Commissioner subject to the same constitutional requirements as the Commissioner.

I am advised that there has been no consultation on the “appointment” of Mr. Brummell. It is therefore my opinion that Mr. Brummell’s purported appointment is unconstitutional, null and void.

For good measure Mr. Henry Greene who is the substantive Commissioner was required, under Article 211 (3) to vacate office when he attained age fifty five (55). He did not do so because according to Dr. Luncheon the government has entered into an agreement with him to continue until age 60. That agreement too is unconstitutional.

So we are in the unique position where both the substantive Commissioner (Greene) and the acting Commissioner (Brummell) exist in a constitutional illegality. What a country!

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Mr Ramnarine was exercising a right and duty under Article 32 of the Constitution

There has been a call from high-up for the disciplining of senior police officer David Ramnarine for exposing certain practices in the Guyana Police Force, and for claiming that his constitutional rights trump the Force Orders. The practice he identified was in connection with the payment of $90 million from Contingencies Fund to feed the Police over the November 28 elections period. On the question of the constitution, Mr. Ramnarine was in fact not only exercising a right but rather carrying out a duty which Article 32 of the Constitution imposes on every citizen. And as just about everyone by now knows, the Constitution is the supreme law of Guyana and not even the Parliament can make a law that is in conflict with it.

I cannot see then how some Force Order purporting to restrict a right could abridge a duty imposed by the Constitution. I would therefore like to receive from the Minister of Home Affairs an informed opinion on which instrument – the Constitution or the Force Orders, or which interest – secrecy of the Police Welfare Fund or the protection of public property – his Government considers paramount.

For, as Article 32 states: “It is the joint duty of the State, the society and every citizen (emphasis mine) to combat and prevent crime and other violations of the law and to take care of and protect public property.”

The country is fortunate and grateful that circumstances forced the lone Mr. Ramnarine to exercise his constitutional duty under Article 32. It is frightening to reflect on the several others in the Police Force, some more and others less senior to him, the GDF, the ministries and departments, and the hundreds of thousands of Guyanese who daily fail in their Article 32 duty.

Whether by accident or intent, Article 32 is a Whistleblowers protection in the public service. I would like to see some enabling legislation aimed at giving effect to Article 32, and to wrong-doings in the private sector as well.

I draw attention also to a further development from the same issue. In the process of his revelation, Mr. Ramnarine implicitly exposed a weakness in the State audits to which I have been drawing public attention: that a bare statement in the Audit Report that drawings from the Contingencies Fund did not meet the criteria set out under the Fiscal Management and Accountability Act was not enough. The Audit Office needs to go further and by a scientific sample, audit Contingencies Fund transactions for accuracy, authority, authenticity and completeness from what auditors call cradle to grave: in this case from the issue of the drawing right by the Minister of Finance to his timely request to the National Assembly for replenishment. The Minister of Finance has only up to the next sitting of the Assembly to seek approval.

I have noticed that the Auditor General (ag.), against a background of public concerns, has announced a special investigation into the $90 million fiasco. I should remind him that Dr. Ashni Singh’s Supplementary Appropriation for expenditure during the parliamentary break involved $5.7 Billion, of which $2.4 Billion was judgmental. I doubt that the public and the parliamentary opposition will be satisfied with another limited scope, incomplete and therefore inadequate exercise.

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There are numerous examples of the Finance Minister’s mismanagement

Mr. Nigel Hinds’ letter ‘Ashni is in the best and brightest category’ (Stabroek News, March 15, 2012) has drawn sharp comments on the meaning and intent of the term “best and brightest”, particularly from those who felt that Mr. Hinds was unjustifiably praising Dr. Ashni Singh, the Minister of Finance. In fact, “best and brightest” is a term of deprecation going back at least to a letter in a 1769 publication in which the writer used it mockingly and ironically to describe King George III’s ministers. Exactly two hundred years later, its place in infamy was sealed when journalist David Halberstam used it as the title of his #1 bestseller which exposed the intellectual bankruptcy of the whiz-kids of John Kennedy’s disastrous policy that led to America’s ignominious defeat in the Vietnam War.

That it was in that context of derision that Mr. Hinds identified Dr. Singh is clear from his paragraph calling for his “cleansing the Augean Stables filled with questionable deals, those facilitated by National Commercial and Industrial Development Limited (NICIL), sale of Sanata Textile Mills, Amaila Falls Project engineered by the infamous Fip Motilal, Georgetown Public Hospital Corporation [GPHC] contracts with New Guyana Pharmaceutical Corpora-tion [New GPC], and the absence of lottery funds from Consolidated Fund to name a ‘few’ ”.

It is public knowledge that Dr. Singh was personally involved in every one of these “questionable deals”, and in the case of the “infamous” Fip Motilal, Dr. Singh’s ministry caused to be issued through GINA a three page attack of undignified calumny on “Ram-like critics” who, on the bizarre selection of Fip Motilal as contractor for the road to the Amaila Falls, dared to expose Motilal as an unqualified contractor. They have been proved right and Dr. Singh wrong. In the case of the GPHC and New GPC contracts, it is the Dr. Singh-controlled National Procurement and Tender Administration Board that annually approves single source contracts, and outrageous of all, Dr. Singh chairs the truly egregious NICIL which spearheaded the tender for the Amaila Road Project.

But these were only a few examples of Dr. Singh’s “brightness”. Here are some others:

1. Every single audit report since Dr. Singh became Minister of Finance reminds us that “the Contingencies Fund continues to be abused”. And the abuser: the Minister of Finance in whom section 41 (2) of the Fiscal Management and Accountability Act (FMAA) invests sole powers and responsibilities over the Contingencies Fund.

2. Dr. Singh’s Finance Ministry has underwritten every one of the irregular transactions of the Jagdeo Administration since October 2006, including the infamous Pradoville 2 for which Dr. Singh’s NICIL allotted house lots to former President Jagdeo, Cabinet Members, members of NICIL boardand friends, all at below market price; computer purchases from a Brooklyn barbershop location; sole sourcing of school books for $90 million; disastrous multi-billion dollar road and other infrastructure contracts.

3. On all but one occasion of Dr. Singh’s presentation of the [annual] mid-year report under section 67 of the FMAA, the report pre-dates by months the date of its publication, prompting integrity concerns.

4. Dr. Singh has never once complied with section 21 of the FMAA dealing with conditional appropriations. Nor on his own recent admission in the National Assembly, has he ever complied with section 24 (4)of the FMAA, on each of the fourteen occasions he came to the National Assembly for supplementary funds, concealing the annual budget deficit.

5. Dr. Singh has begun to use creative financing to plug the ballooning budget deficit caused by over-spending and non-receipt of the Norway money. In 2010 he treated $11.117 billion as Miscellaneous Income, “the net result of the ‘closure’ of inactive accounts, and retiring long outstanding obligations in relation to the issuance and redemption of Government Securities.”

6. Dr. Singh was central to the sale of state property and the unlawful granting of tax exemptions to the Ramroop group. In these transactions, Dr. Singh had not one but three occasions to check the validity, legality and propriety of the transactions: as Minister of Finance, as Chairman of NICIL, and as a senior Cabinet minister. He missed them all.

7. As Minister of Finance, Dr. Singh controls the Consolidated Fund and has allowed the proceeds from the Lottery to be placed in a “special” account outside of the Consolidated Fund. He approves the operations of this extra-ordinarily special account from which only his mentor, former President Jagdeo could spend.

8. Dr. Singh was part of a transaction for $4 billion in which there was sufficient evidence to refer Minister of Housing Irfaan Ally to the Privileges Committee for allegedly misleading the National Assembly.

9. Dr. Singh has presented five budgets to the National Assembly totaling $627.5 Billion. During that time, we have had no natural disasters or economic shocks undermining the Budget. Yet, during the same period, Dr. Singh has returned to the Assembly with fourteen (14) supplementary appropriation bills covering over 440 transactions totaling $67.5 billion –conditions that would embarrass even a mediocre budget controller. For good measure, none of the transactions involving drawings from the Contingencies Fund, covering a minimum of $19.5 billion, was brought within the “next sitting” of the National Assembly timeframe required under section 41 (5) of the FMAA.

10. Dr. Singh has ministerial responsibility for the National Insurance Scheme and the Insurance Act. To him therefore, is due more than a quarter share of the blame in the Jagdeo-Dr. Singh-Luncheon-Gita Singh quartet for the NIS loss of $5 billion in Clico.

11. As Finance Minister Dr. Singh would have known of the mistake that led to the excessive VAT rate of 16%. In order to disguise the effect of the mistake and a windfall of close to twenty billion dollars, he sought supplementary spending provisions of $18 billion in the last two months of 2007! “Brightness” is certainly not the word to describe such shocking conduct. No wonder, neither Dr. Singh nor former President Jagdeo has responded to my several public challenges to them to release an unredacted copy of the report of the Barbadian consultant who was contracted to carry out the exercise. As a result the state has so far gouged the Guyanese taxpayer of more than fifty billion dollars.

As readers would expect, such a letter cannot address all the financial shenanigans hidden in the spending of $627 billion (US$3,135 million) during the last Parliament. Only a thorough investigation initiated by the National Assembly will reveal how the “best and brightest” Dr. Singh and his mentor, that other “best and brightest” Mr. Bharrat Jagdeo, have mismanaged the country’s finances for five years.

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Citizens have a constitutional right in relation to budget consultations

The exchanges between Dr. Ashni Singh, Minister of Finance and Mr. Carl Greenidge, former Finance Minister about whether or not there will be a meeting of the parliamentary parties on the 2012 Budget should not have been necessary given the country’s constitutional framework.

Prior to 2003, Article 11 (now Article 13), Chapter II PRINIPLES AND BASES OF THE POLITICAL, ECONOMIC AND SOCIAL SYSTEM provided that “The principal objective of the political system of the State is to extend socialist democracy by providing increasing opportunities for the participation of citizens in the management and decision-making processes of the State.” To the representatives of the PNC Government who questioned the justiciability of the specific Article, then Chancellor Keith Massiah responded in the 1987 decision in the case Attorney General v Mohammed Ally that “I see no reason to think that the articles in Chapter II of the Constitution have no juridical relevance and are merely idealistic references with cosmetic value only. So to think would be to seek to debase the Constitution.”

In a subsequent amendment, the strength and justiciability of Article 13 were put beyond doubt when by Act 10 of 2003 the right to be consulted was made into a fundamental right under Article 149C in the following terms: “No person shall be hindered in the enjoyment of participating through co-operatives, trade unions, civic or socio-economic organisations of a national character in the management and decision making processes of the State.”

However, since his appointment in 2006, Dr. Singh has shown a disdain and intolerance for the annual budget consultations – arguably the single most important decision made by the State in any year – and discontinued them for his first Budget in 2007.

Ironically, while Dr. Singh might have argued against any meeting with the parliamentary opposition on the grounds that they were not contemplated within “trade unions, civic or socio-economic organisations”, and that they have all the opportunities to participate in the debate in the National Assembly, he has agreed to meet with them even as he has blocked out entities as women’s groups, the professional accounting body, the trade unions, the private sector organisations, etc.

President Ramotar has to be careful that his preference for a more open presidency and non-violation of the Constitution applies not only to himself, but to his Ministers as well. It is not whether or not Dr. Singh cares for consultations or whether he thinks they are useful.

It is that citizens have a constitutional right to participate in such a process.

And as a Minister of the Government Dr. Singh has a corresponding duty to engage persons, and not only the parliamentary opposition, in such consultations.

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Provisions of two financial Acts are vastly different

One of the attributes of someone engaged in teaching, as I have been at various times, is the constant and necessary effort to put things over in a manner that facilitates comprehension by students. While that does not apply to Mr Ralph Ramkarran, his response of March 1 to my letter of February 29 on the two financial papers currently before the National Assembly, suggests that he missed several points which I thought would be quite obvious, particularly since he presided over the parliamentary debate on the Fiscal Management and Accountability Act 2003 which is again being hotly contested in the National Assembly. Mr Ramkarran either does not understand, or is unwilling to accept, that the Financial Administration and Audit Act Cap. 73:01 is as different from the 2003 Act as chalk is from milk.

In order to make the differences between the relevant Contingencies Fund provisions of the two Acts excruciatingly clear – borrowing the words of our energetic new Attorney General – I thought it would be helpful to set those features out in tabular form. Visually, the following ought to be obvious: that the provisions are vastly different; the reasons for their being different (the sums involved, ever evolving standards of accountability and transparency); what the legislators set out to do to manage the risks associated with the huge sums involved (detailed reporting, a statement showing the impact on the annual budget); and statutory sanctions against the Minister.

Financial Administration and Audit Act Cap. 73:01 (1961)  

Fiscal Management and Accountability  Act 2003
1. Purpose:
To meet unforeseen and urgent expenditure.

 1. Purpose:
To meet urgent, unavoidable and unforeseen expenditure.
2. Circumstances:
Expenditure cannot be postponed without injury to the public, and no other provision exists to meet the expenditure.

 2. Circumstances:
Expenditure cannot be deferred without injury to the public interest and there have been no or insufficient appropriated sums for which no reallocation is possible.
3. Mechanism
An advance 		3. Mechanism
Issuance of a drawing right
4. Maximum Spending:
$500,000

 4. Maximum Spending:
2% of expenditure approved by the national assembly of the preceding year. Currently equivalent to $2.5 Billion.
5. Report to National Assembly
NONE 		5. Report to National Assembly
Report by minister specifying:
I. The amounts advanced;
II. To whom paid;
III. Purpose of advances; and
IV. A supplementary document describing the impact that the variations, if approved, will have on the financial plan outlined in the annual budget.
6. Time for taking to National Assembly
As soon as possible
 		 6. Time for taking to National Assembly
Next sitting of the Assembly
 
7. Procedures:
a) Preparation of supplementary estimates.
b) Approval by National Assembly.		 7. Procedures:
a) The Submission of supplementary appropriation bill.
b) Approval by National Assembly.
8. Sanctions against the Minister of Finance
NONE  		 8. Sanctions against the Minister of Finance
Minister personally liable for any loss which he caused or to which he contributed.

It may have escaped the attention, not only of the learned Senior Counsel Mr Ramkarran but also the entire National Assembly, that the limit remained at a modest dollar sum for thirty-seven years because the circumstances – even at the lower pre-2003 standards – so extreme that it would have been unimaginable that any person would be given discretion to spend such huge sums without parliamentary approval when the convening of the National Assembly is a telephone call away! Section 41 should be amended immediately to restore some discipline to the demonstrated tendency of Dr Ashni Singh to abuse his powers and to act recklessly. I recommend a figure of no more than $50 million, which is one hundred times the pre-2003 limit.

Finally, as demonstrated by letters in the press, Mr Ramkarran is not the only person who appears to have difficulties with the nature and implications of the 2003 vis-à-vis the 1961 Act. He shares company with Mr Philip Bynoe and pollster Vishnu Bisram, who can only see an “Indian hospital.” Not too long ago, Mr Bisram saw a landslide; it was a mirage.

To my disappointment, Mr Ramkarran, stung by my letter, allowed himself in his March 1 letter to degenerate into the public ‘cuss-down’ which up to recently he had opposed from his nemesis Mr Jagdeo. I would suggest that he moderate any intemperate response to this letter, since he himself is not without vulnerabilities.