THE MARRIOTT HOTEL MOTION IS NOT ILLEGAL

Dec 23, 2012 Features / Columnists, Peeping Tom

---

 

The government is not lawfully compelled to abide with a motion passed by the National Assembly. They may be morally bound to so do, but there is no legal compulsion for the government to enforce a motion passed by the National Assembly.
There have been any motions passed in the National Assembly. Not all of these motions create obligations for the government to act. Some do, however. There was a motion passed to bring closure to the death of Walter Rodney, and while the government has tried to give effect to this motion, it was unable to do so because of circumstances which need not detain us here.
A motion was recently passed calling for government to not use taxpayers’ monies for the Marriott Hotel Project unless such funding is subject to scrutiny of the National Assembly. This motion is not unlawful. There is nothing unlawful about the motion. There is however no legal compulsion for the motion to be enforced.
The motion is, of course, misconceived. It flows from the erroneous contention that monies of public corporations are required to be passed through the Consolidated Fund. This contention has been debunked in this column and needs little further elaboration, except to say that it has long been the legal understanding that the owners of a corporation are its masters.
There is an abundance of case law on this issue to the extent that it is now considered a rudimentary principle of commercial business law and is recognized, even in instances where the corporate veil is required to be lifted.
It is therefore surprising and disturbing to hear learned members of the Bar arguing that the monies of public corporations are required to be passed through the Consolidated Fund. Nothing could be more absurd and inaccurate as this contention because by their very nature, public corporations are exempt from this process.
If monies from the Consolidated Fund are required to be used for the construction of the Marriott Hotel, then the opposition has the powers to veto such spending and there is no need for any motion. However, no taxpayers’ monies are likely to be used for this project. The monies that are likely to be used will most likely originate from NICIL and it is suspected that billions have already been committed to the project by NICIL. The motion, therefore, was ill-conceived.
Instead of taking that approach, the combined opposition should have engaged in a little horse-trading, linking support for next year’s forthcoming Budget to more thorough external scrutiny of the funds being used to fund the hotel project.
The opposition parties are, however, behaving like a battering ram, deluding themselves into thinking that this tenuous majority of one that they possess somehow gives them the right to dictate to the government rather than be the strength from which they should negotiate with the administration.
The opposition parties are acting immaturely and they are going to walk straight into a snap election which they will lose because they have been far from responsible with the use of their razor-slim majority.
The government, of course, sees itself as being under siege and remains inflexible. During the debate on the motion regarding funding for the Marriott Hotel Project, a number of pertinent and legitimate questions were posed by the opposition. Yet, the government, which has the advantage of access to and possession of information concerning this project, doggedly dodged these questions, and in one instance, seemed more concerned with questioning the credibility of the source of these questions.
It is a disturbing performance of panic and fear by a sitting government, which shows that it feels it is coming under bombardment by the opposition and therefore needs to set up political bunkers.
The opposition wants to scrutinize funding for the Marriott Hotel before it is approved. In support of this objective, the parties argue that their role is to scrutinize the actions of government. They seem to have belatedly discovered this role.
While it is true that the role of opposition is to exercise oversight, such scrutiny is not expected to be direct, because this would encroach on the executive’s prerogative to manage the affairs of the State.
It is not parliament’s role to act like a loan agency and to decide how much and when funds are going to be released for a government project. Parliament cannot also act as the direct auditor of the project. Their oversight in general is restricted to questioning government‘s handling of the project and making criticisms as the need arises or debating the project.
As such, instead of a motion requiring parliamentary approval of the funds for the project, there should have instead been a motion approving a process through which government would have been asked to establish an independent monitoring mechanism to ensure that every cent on this project is accounted for.
But to ask the opposition to tailor their motion to this objective would be an exercise in futility because the opposition can be just as intolerant, stubborn and inflexible as the government, which feels besieged.

---

---