Flouting the constitution

Feb 18, 2011 Editorial

The President has boasted that we have one of the most “advanced” constitutions in the region. Constitutions, among other things, are supposed to delineate the responsibilities of the various officers of the government. But from all the evidence that has piled up all with increased frequency and seriousness, it seems that our “advanced” constitutional provisions have served only to exculpate governmental officers – especially those in the higher echelons usually mentioned in constitutions – from any and all responsibility for what goes on under their watch.
One could take any of the scandals that have swirled around this government to illustrate this point. We could do worse than start with one that is still ongoing – and we do not mean Laptopgate. We refer to the Lottery Fund outrage that has been perpetuated for a decade and a half.
The Constitution stipulates that all revenues of the government must be deposited in the Consolidated Fund unless there is a fund established by law for identified revenues. Under this exception, the government in 1972 amended the Guyana Lotteries Act of 1963 to allow for a special account to be kept by the Accountant General.
However, this fund was exclusively for the payment of lottery prizes and charges relating to the lottery.
The same 1972 lotteries amendment provides that if there is a deficit in the lottery operation at any time the amount should be charged on the Consolidated Fund “which is hereby charged with such payment.”.
It is therefore clear that any excess in the fund after clearing expenses should be transferred to the Consolidated Fund. But this has never been done – even though the irregularity has been pointed out by several Auditors-General for the umpteenth time. Basically the monies piled up in the Lotteries Fund are used as a slush fund that is used by the Executive at his total discretion.
And we are not talking about chicken feed. Between 1996 and 2009, the government received $4 billion from the Guyana Lottery Company, and spent $3.153 billion. The Finance Ministry has never transferred the government’s share of 24 per cent of the lottery proceeds to the Consolidated Fund.
In the words of the Auditor General last year, “The balance in the bank account… was not refunded to the Consolidated Fund as required by Section 43 of the Fiscal Management and Accountability Act 2003, but was retained by the Ministry.
Section 43 of the Act says that ‘Except as otherwise provided in this Act or in any other law, at the end of each fiscal year, any unexpended balance or public moneys issued out of the Consolidated Fund shall be returned and surrendered to the Consolidated Fund’.”
The Minister of Finance, through the Attorney General, has boldly asserted that it has no obligation to transfer the funds.
One of the problems of our Constitution is that while it is purportedly based on the Westminster model that presumed the principle of Cabinet responsibility, the introduction of the Presidency with almost unlimited powers as head of the Executive has introduced some fatal ambiguities. Under the cabinet system of government, the Cabinet, which is a single unit led by the Prime Minister, is immediately answerable to the elected House. It stands and falls together. Simultaneously, there is also individual responsibility for each Minister with respect to the performance of the Department or Departments under his charge and the Prime Minister represents the ‘keystone of the Cabinet arch’ and occupies a position of exceptional accountability on the performance of the Cabinet as a whole.
However, our Presidential system, which places the President above the legislature, effectively short circuits the entire edifice of Cabinet responsibility. With the President essentially above the law, every and all excesses can be committed under his office, and no one is ever responsible. At the very best some low level clerk will be fired and the President will cuss out government workers for being “corrupt”.
Dolphins anyone? Floating wharves? Laws of Guyana CDs? Remigrant duty free cars?

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