GOVERNMENT AND CONSTITUTIONAL OFFICE HOLDERS


Minister Winston Jordan’s outburst at Auditor General, Deodat Sharma, a constitutional office holder, was unusual. While it came from a man of moderate temperament, it offends what is or should be the normal practice, namely, that the executive should not publicly chastise or question decisions of independent, constitutional office holders except within official channels. The issue was the Auditor General’s opinion that certain government expenditures did not qualify as emergencies and so were not properly charged to the Contingencies Fund.

The Minister’s view was that the Auditor General has no jurisdiction under the Fiscal Management and Accountability Act (“the Act”) to pronounce on whether an expenditure qualifies as ‘urgent, unavoidable and unforeseen.’ He argued that the decision is that of the Minister who reports to the National Assembly. The Minister further suggested that in the past the Ministry was given the opportunity to edit the Auditor General’s Report but that such a facility has been withdrawn. The Auditor General rejected the Minister’s assertions.

The National Assembly gives the Government authority to spend from the Consolidated Fund by an Appropriation Act passed after every budget. Since ‘urgent, unavoidable and unforeseen’ cannot be budgeted or await parliamentary approval, the Minister, if satisfied of the need, is authorized under the Act to approve it from the Contingencies Fund, but must seek subsequent parliamentary approval, usually granted by an in-built majority.

The Auditor General is required by the Constitution to audit the public accounts of Guyana, which includes the Contingencies Fund, and he shall not be subject to the direction or control of any person. If the Auditor General is not to be confined to being a mere bookkeeper, he (or she) might discover that the Minister has dipped into the Contingencies Fund to buy a car, to use the Minister’s analogy, which was not ‘urgent, unavoidable and unforeseen,’ even if the National Assembly approves it.  Should the Auditor General then act only as the bookkeeper, ensure that the car was competitively sourced, that the invoice and the expenditure correspond and then remain silent? Or should he or she interpret his or her constitutional mandate of auditing the public accounts to mean more than “bookkeeping?” If so, this would oblige him or her to examine the use of the Contingencies Fund to ascertain whether such use complies with the statutory requirements of being for ‘urgent, unavoidable or unforeseen purposes.

Where in the world would a constitutionally mandated Auditor General consider himself or herself to be so statutorily circumscribed that he or she would preclude himself or herself from giving an opinion on the use or misuse of a fund that he or she is required to audit? Or go even further and assume the jurisdiction to monitor adherence to the Act. The Auditor General has been doing this very same thing under previous administrations without objection, unhappy though they might have been. And sustaining any argument that he or she cannot do so would be defy credulity.

There are institutional mechanisms that are available to the Minister if he disagrees with the Auditor General. The constitutional amendments of 2002 removed the jurisdiction of the government over the Auditor General and placed the office under the authority of the National Assembly, where the Public Accounts Committee examines the Auditor General’s reports. The Minister has ample opportunity of having the issue raised in that forum and even having the National Assembly pronounce on the matter. The Auditor General may take note but his master is not the National Assembly, but the Constitution, as interpreted by the courts, for good reason.

There is also the legal option. The Minister can apply to the court for Writs of Certiorari and Prohibition. This will require the court to consider whether the Auditor General exceeded his powers. If it comes to the conclusion that he did, it will grant the Writs. The effect would be to quash that the Auditor General’s decision and prohibit him from doing it again.

Guyana follows the Western liberal, democratic, tradition of separation of powers. Separation between executive and legislature can be nominal under Westminster constitutions, where the executive sits in the Parliament, or subversion can reduce the independence of the judiciary and other constitution office holders. To maintain and strengthen that independence, relations between Government and constitution office holders must be professionally structured. Such niceties did not engage past governments and this Government has little or no precedent to follow.

The President and Minister Harmon invited Mr. Carvil Duncan, the Chair of the Public Service Commission and ex officio member of several others including the Judicial Service Commission, to a meeting during which they asked him to resign. Mr. Duncan said he was offered a package to do so, meaning money. Mr. Harmon denied the assertion. The Minister of Finance criticized Mr. Deodat Sharma, a constitutional office holder. The mild mannered Mr. Sharma replied respectfully, in polite language, but to the effect that ‘you’re not my boss, I don’t have to consult you and you’re wrong anyway.’ Mr. Jordan probably forgot that some of Mr. Sharma’s reports were critical of the past governments while they were in office but they, wisely, never publicly confronted him. Criteria, capable of growing into conventions, need to be developed to deal with Government relations with constitutional office holders.

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