CHANGE THE FORMULA FOR APPOINTING THE PUBLIC PROCUREMENT COMMISSION

Jun 03, 2014 Features / Columnists, Peeping Tom

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A great deal of energy is being used up in the debate as to who should be blamed for the non-passage of legislation relating to amendments to the Anti-money Laundering and the Countering of the Financing of Terrorism Act.
The issue has been laid bare. Non support by the opposition parties have little to do with the amendments themselves, even though the opposition had proposed amendments which the government says has been deemed as unnecessary. The principal reason why the Bill containing the amendments has not been passed is because of political demands which are being made by the opposition parties.
The AFC has not been “beating around the bush”. It has said clearly that if the Public Procurement Commission is established then its support is guaranteed.
The government in turn insists that it, too, wants the Public Procurement Commission in place but that Cabinet must retain a no-objection to the award of contracts. In an effort to move things forward the President had at one stage consented to bringing the Commission into being so long as the opposition passes an amendment that would allow for the no-objection by Cabinet to be retained.
The President must be held to his word because he is the President and if he gives a public guarantee that so long as the no-objection is agreed upon the process of appointing the Commission would go forward, then the AFC should take him at his word.
The AFC however may be of the view that once the government gets its way with the no-objection then the government will backtrack on the appointment of the Commission. The government on the other hand is fearful that if it moves forward on the appointment of nominees to the Public Procurement Commission, the opposition may not keep its word on the no- objection.
The difficulty is that it requires a two-thirds majority in the National Assembly for the appointment of the Public Procurement Commission. This is a near impossibility considering the divisions within the House. It is almost impossible for the National Assembly to agree with a two-thirds majority on the appointment of Commissioners. As such, even if the opposition approves a no-objection clause, there still remains the hurdle of finding five persons agreeable to all the political parties in the National Assembly.
In order to break this impasse, there is a need to not only ensure that Cabinet has its no objection but also to change the formula for appointing the commissioners to the Public Procurement Commission.
What is needed is for the two sides to agree to a new formula for the appointment of the Commission. Under this new formula, it is hereby proposed the opposition should submit the names of ten persons not objectionable to the President for possible appointment to the Public Procurement Commission. From these ten names, the President will be required to pick five.
This too will be a protracted process but it will be a far superior one to the near mission impossible than the one provided for by the present statute in which there has to be a vote of support by two-thirds of the National Assembly.
A compromise is therefore possible on the AFC’s demands. The problem is with APNU.
APNU has its own demands. APNU wants laws that it piloted to be assented to. This is asking too much. The Constitution allows for the President to refuse assent to Bills passed by the National Assembly. To force the President to give automatic assent to Bills passed by the National Assembly would be to violate the very spirit of the Constitution.
The President does not have to establish that a Bill is unconstitutional before refusing to assent to it. He can refuse to assent to a Bill because he does not agree with it. This is his prerogative provided for by the highest law of the land to which everyone, including parliament is subject.   Once he refuses he has to provide the National Assembly with his reasons.
The President has done so. It is not for the National Assembly to question the President’s right to refuse assent. It is for them to obtain a two third vote of the national Assembly to override the presidential veto.
APNU however cannot do this and is try to force the President to undermine his own presidential prerogative.
To give into the APNU’s demands would constitute an erosion of the Constitution and undermining the right of the Executive to determine government policy. If APNU has its way it would mean that the legislature could dictate Executive policy and this is contrary to the most fundamental principle of our system of constitutional rule- the separation of powers.
No compromise therefore can be reached on APNU’s demands. They are seriously flawed. But a compromise can be reached with the AFC. Instead of sticking to the existing formula, the government and the AFC should agree to a new formula for appointing the members of the Public Procurement Commission, one that would involve a new formula.
However without the support of APNU, the constitutional amendment necessary to change the formula would not be achieved.

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