Using Article 218 (3) as permission to illegally withdraw public funds is farcical

Jul 24, 2014 Letters

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DEAR EDITOR,
Despite a lack of legal training, I consider myself like many other Guyanese to be reasonably intelligent and capable of understanding what is written in the Constitution of Guyana. I am therefore quite clear on the meaning of the following Article of our Constitution:
217 (1) No moneys shall be withdrawn from the Consolidated Fund except—
a) to meet expenditure that is charged upon the Fund by this Constitution or by any other Act of Parliament; or
b) where the issue of those moneys has been authorised by an Appropriation Act; or
c) where the issue of those moneys has been authorised under Article 219.
What this tells me is that there are only three provisions in the Constitution for withdrawing money from the Consolidated Fund. The first two are self-explanatory, while the third (c) refers to another Article (219) of the Constitution which simply provides for expenditures necessary for carrying on the business of Government during the period before the approval of the budget or up to the end of April of each year, whichever comes first.
Another Article (220) of the Constitution provides for the establishment of a Contingencies Fund, and for advances to be made from the Fund, and for the fund to be replenished. Article 220 is made specific by the Fiscal Management and Accountability (FMA) Act of 2003, Article 41(4) of which limits withdrawals from the fund to two percent of the estimated annual expenditure of the previous fiscal year.
Since the Contingencies Fund is a sub-fund of the Consolidated Fund and ultimately requires a withdrawal from the Consolidated Fund for its establishment, this withdrawal is provided for in Article 217(1)(a) above by an Act of Parliament (FMA Act). A retroactive appropriation by the National Assembly allows the Contingencies Fund to be replenished by withdrawing from the Consolidated Fund under Article 217(1)(b). This has to be so in order to conform to the very explicit requirements of Article 217(1) of the Constitution which contains the only allowable provisions for withdrawals from the Consolidated Fund.
It is with this understanding that I wish to comment on the response by President Donald Ramotar to the formal notification by Leader of the Alliance for Change, Mr. Khemraj Ramjattan of the party’s intention to pursue the use of a vote of confidence against the Government of Guyana.
In his letter to Mr. Ramjattan, the President emphatically defends the unauthorized withdrawals from this country’s Consolidated Fund by his Minister of Finance by stating:
Article 218 (3) is unambiguous in allowing for expenditure to be incurred in the absence, or in excess of available appropriations as approved in the extant Appropriations Act. That Article reads thus:
“In respect of any financial year it is found… that any moneys have been expended for any purpose in excess of the amount appropriated for that purpose by the Appropriation Act or for a purpose for which no amount has been appropriated by that Act… a statement of excess showing the amounts…spent shall be laid before the National Assembly by the Minister responsible for Finance…”
The President seems to have completely missed the point of Article 218 (3) (b) of our Constitution which he quotes above as the constitutional basis on which his Minister is permitted to spend public moneys that have not been appropriated.  Nowhere in that Article is there a permission to spend money in excess of amounts appropriated or for purposes for which no amounts have been appropriated.
Instead this Article prescribes what is to be done if it is found that any moneys have been expended for any purpose in excess of the amount appropriated for that purpose by the Appropriation Act or for a purpose for which no amount has been appropriated by that Act.
In other words, if it is found that the primary constitutional provision (Article 217 (1)) governing withdrawals from the Consolidated Fund has been breached, Article 218 spells out the process to be followed in order to bring all withdrawals back under the authority of the National Assembly. This in no way exonerates the unlawful spending.
An appropriate analogy can be found in Section 63(1) of the Motor Vehicles and Road Traffic Act which states:
If in any case owing to the presence of a motor vehicle on the road an accident occurs resulting in injury or death… the driver of any such vehicle shall-
a) immediately stop his vehicle at the scene of the accident
b) give his name, address and the registration number of his vehicle and exhibit his driver’s licence to………
The existence of this legal provision does not authorize a driver to go and crash his or her vehicle into someone else’s. It simply sets out a legal obligation to be followed in the event that such an incident occurs. In no way does it legitimize the act of causing the accident.
The President also writes:
I resolutely maintain that the actions taken by my government about which you complain are expressly authorised and permitted by both the letter and spirit of the constitution. Indeed, you yourself participated in this identical process in the years 2012 and 2013 by supporting Financial Papers 1 of 2012 and 1 of 2013.
When it comes to public spending, the Fiscal Management and Accountability Act of 2003 contains the relevant laws, and Article 16 of that Act states: “There shall be no expenditure of public moneys except in accordance with Article 217 of the Constitution”. The margin note to this Article reads: “No expenditure without appropriation” and captures the spirit of the Constitution in a way that clearly eludes the President.
He also seems to believe that having retroactively appropriated some of the unauthorized spending in 2012 and 2013, the National Assembly forfeits the right to put its foot down now that it has become clear that his Government will no longer recognize its authority to authorize all public spending.
The unprecedented grey area created by the Chief Justice’s fuzzy provisional ruling and the long-delayed final decision may have contributed to an uncertainty over how the National Assembly should deal with the unauthorized spending. The President should not misinterpret this to mean that the opposition did not have a serious problem with what was done by his Minister of Finance in the previous years.
Further, the President posits:
The Honourable Chief Justice, Mr. Ian Chang in his 18 July, 2012 ruling on the budget cuts case is equally unambiguous. He states thus:
“The application of article 218(3) is premised on a finding of insufficiency of an appropriated amount for a stated purpose or of no amount for a purpose for which a need has arisen and which has received no appropriation it is not this court to substitute itself for the Minister of Finance. It is he who must make the perquisite “finding” under Article 218(3) of the constitution…”
The President must be blessed with an incredibly high IQ if he finds the above to be an unambiguous permission for his Minister of Finance to spend without parliamentary approval. Once again I draw, not on any legal training, but on basic common sense when I suggest that the part of Article 218(3) quoted to by the President in his excerpt from the Chief Justice’s ruling is perhaps not the same part of Article 218 (3) which he quoted earlier in his letter. Article 218 (3) describes two separate circumstances, designated (a) and (b) respectively, under which the Minister of Finance is required to lay before the National Assembly, either a supplementary estimate or a statement of excess.
The Article first quoted by the President in defence of the unauthorized spending is 218(3)(b) which is premised on a “finding” that “moneys have been expended for any purpose in excess of the amount appropriated…”.  His quote from the Chief Justice’s ruling clearly refers to Article 218(3)(a) which describes a situation where it is found –
that the amount appropriated by the Appropriation Act for any purpose is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by that Act
It is this part of Article 218(3) that is premised on a “finding of insufficiency of an appropriated amount for a stated purpose ….” as quoted from the CJ’s ruling.  Unfortunately this is not applicable to what has occurred in this case and has no bearing on the unauthorized spending of his Minister.
It should also be pointed out that the Contingencies Fund for this year would be capped at G$4.16B and any advances from this fund requires the Minister to lay before the National Assembly at its next sitting a supplementary estimate for the purposes of authorizing the replenishing of the fund.
Financial Paper # 1 of 2014 introduced in the National Assembly last month is a statement of excess and therefore not applicable to withdrawals from the Contingencies Fund, which some are suggesting might have been misused by the Minister in his attempt to bypass the National Assembly. It would be good for the public to know the current status of the Contingencies Fund. This is everyone’s business.
As a layperson I can find no constitutional basis for the Minister’s withdrawals of G$4.5B outside of this year’s Appropriation Act. The use of Article 218 (3) as permission to do so is farcical. Anyone looking at Article 218 in its entirety will quickly see that it sets out how authorization should be obtained for withdrawals from the Consolidated Fund and offers no guidance on making those withdrawals.
The AFC has made public the fact that it has lodged a formal complaint with the Guyana Police Force over these illegal withdrawals from the nation’s consolidated fund. It falls entirely within the purview of the Police to investigate such a complaint and to document the results of their investigation so that it can be determined if criminal charges are appropriate.
We expect that the Police Force will give this matter the attention it deserves and not be guided by the attitudes of our Minister of Finance and our Attorney General whose referrals to this matter as frivolous and vexatious are in line with previously demonstrated attitudes to breaches of the laws of this country.
Dominic Gaskin

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