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Own Goals and Penalties: Did PP and PNM subvert Constitution on pensions?

Sometimes the beauty of a goal is in its build up, not the scoring.

Last week, on June 14, Trinidad Express journalist Ria Taitt revealed that the Lower House (MPs) had just approved amendments to two bills, which would give themselves fat new pensions.

The story took about 48 hours to really generate interest because it’s the middle of the first round in the Brazil 2014 World Cup. And soccer-mad TnT, caught up with the beautiful game, barely have time for Anil Roberts, weed stashes, prostitutes in hotel rooms, or Government programs that are funding criminals; far less to pay attention to Parliamentary debates.

Photo: Brazil defender Marcelo kicked off the 2014 World Cup score summary with an own goal against Croatia. (Courtesy Business Insider)
Photo: Brazil defender Marcelo kicked off the 2014 World Cup score summary with an own goal against Croatia.
(Courtesy Business Insider)

Oh, and we had a long holiday weekend. And Laventille and the Police/Army were at war.

The story in front of us is simple. The Parliament—both Government and Opposition—chose to amend two bills: the Judges Salaries and Pension Bill and the Retiring Allowances: Legislators.

Nothing weird here. Law making, legislation, bill amendments etc are the business of the Parliament, yes?

So, it stands to reason that if changes have to be made to a law, it is our legislators that should get in there and earn a salary, yeah?

By Saturday, Ms Taitt’s stories of fat pensions, stopped being simply an issue of “them MPs tiefing from the Treasury again, wha we go do boy? Aye, the match start yet?” and started being likened to Section 34.

You remember that fiasco, right? A Bill proclaimed in the dead of night during our 50th Anniversary Independence celebrations? One that had both Government and Opposition support in Parliament but didn’t have Opposition support for the new declaration date?

By Saturday June 21, the swell of dissent had begun. Martin Daly SC and Reginald Dumas, former head of the public service, regular go-to advisors for the Trinidad Express, were out the blocks first.

Daly insisted that it was a breach of the Constitution; and that the integrity of judges—now reliant on MPs for their improved salaries—was in question. And Dumas questioned the adding of allowances to the calculation of pensionable emoluments and stating emphatically that there was no precedent for such.

But the real zinger that day came in the form of a public letter from Jackie Carr-Brown. In the letter, Carr-Brown stated:

“These bills are unconstitutional. They pertain to the setting of compensation for judges, senators and MPs. The Government is not authorised to determine its own compensation, nor the compensation of the Judiciary.  

“Only the independent, autonomous, Salaries Review Commission (SRC) which reports solely to the President, may make recommendations in this regard. In this way, the Constitution protects the country against executive abuse.”

No democratic country in the world permits its legislators to determine their own compensation.

Her statement couldn’t be clearer. Himself was passing Amendments to pay Himself and bypassing the enshrined Constitutional arrangements.

The Salary Reviews Commission was being sidelined by the Government, and worse yet, the Opposition was supporting this! For $$$$$$$$$!

Photo: The Sunday Express looks at the effect of the controversial amendments. (Courtesy Trinidad Express)
Photo: The Sunday Express looks at the effect of the controversial amendments.
(Courtesy Trinidad Express)

Two important details to note here: the SRC, weirdly enough, is in a position to determine its own salaries according to our Constitution; and Jackie Carr-Brown is allegedly married to a member of the Salary Reviews Commission, hence her knowledge.

Here is the conundrum.

Up until Sunday morning (June 22), the issues surrounding this latest fiasco seemed pretty clear cut to me:

1. MPs had bypassed the SRC to give themselves pensions since they were displeased with the salaries recommended by the SRC in November 2013.

2. MPs had done the unprecedented thing and added allowances to their pensionable emoluments. The burden of these new fat pensions would cripple the Treasury.

3. In determining the pensions of retired Judges, the Parliament had breached the Constitution by threatening the separation of powers; a pillar on which our democracy (such as it is) stands.

Then by Sunday afternoon, in the midst of my baked fish and callaloo, just as I was prepping for the USA versus Portugal game, information started pouring out of my phone. Damn you, Google Search!

1. This issue of the Government amending Judges’ pensions isn’t new. AG Anand Ramlogan announced he was doing this, almost a year ago, on June 27, 2013.

He said then that the Judges Pensions Act, which was enacted in 1962, and judges’ pensions have never been revised upward since.

“The Government is seeking to increase the amount of pension paid to a retired judge from 1/360th to 1/300th,” said Ramlogan. “The amendment would also provide for a periodic revision of the pension paid to retired judges of the Supreme Court, as well as a more favourable computation of the pension paid to judges of the Supreme Court.”

Furthermore, the amended bill will propose a recalculation of the pension of judges who have retired for more than ten years.

I didn’t stumble upon any articles which suggested that the SRC objected to this Government announcement.

What is also noteworthy is that amending MPs pensions was not on the cards then at all. But, after the SRC’s new salary recommendations last November, it certainly got tabled quickly.

Photo: Attorney General Anand Ramlogan SC.
Photo: Attorney General Anand Ramlogan SC.

2. Several senior members of Government and even retired Judge, Zainool Hosein, insisted that the SRC dragged its feet for at least two decades on reviewing salaries and compensation packages and stated categorically it was not responsible for pensions.

Retired Justice Zainool Hosein told the Express yesterday that: “We are no longer in office. The pension is only payable to past office-holders and therefore the separation of powers is not an issue.”
Hosein noted too that the SRC had consistently taken the position that the pension of retired judges did not fall within their jurisdiction.

“They took the view that that matter must be dealt with by Parliament,” said Hosein. “Now it has been dealt with by Parliament, by both Government and Opposition (which agreed to it), and I am a little surprised that on a matter in which they (SRC) claim no jurisdiction they are reportedly expressing concerns.”

According to Section 141(1) of the Constitution, the SRC, with the Approval of the President, can review the salaries and other terms and conditions of services of the offices falling within its purview from time to time.

I’m not a lawyer or legislator. I can’t even begin to tell you if those words mean pensions are covered. I can’t even say if those words mean that the SRC has jurisdiction over retired judges.

What I do know is that, apart from the SRC, there are specific Acts that address Judges’ Pensions and Legislators’ Pensions and the only people that can make changes to those Acts don’t sit on the SRC. They sit in Parliament; Opposition and Cabinet.

I’d recommend reading the 98th Report of the Salaries Review Commission if only to see what the purpose of the Commission is and what kinds of salaries and allowances are paid to Presidents, Prime Ministers, Commissions and senior Public Servants.

3. The Pension amendment comes from a contributory fund. This means its impact on the Treasury is different. Whereas mid to lower range Public Servants depend entirely on the state to pay their pensions, gratuity and lump sums, Judges and MPs have to contribute a percentage of their salary towards their pension, and the State provides the rest. What I’m still unclear on is what the ratios are and how much it is going to cost the State.

I’m also keeping in mind that Judges don’t pay taxes on their salaries at all and watching that reaaaaaaaaaal cock-eyed.

Photo: Former Justice Minister Herbert Volney was sacked for his role in the Section 34 fiasco.
Photo: Former Justice Minister Herbert Volney was sacked for his role in the Section 34 fiasco.

4. With respect to the unprecedented nature of adding allowances to pensionable emoluments; it actually isn’t unprecedented. According to the Pensions Act Chapter 23:52: ‘pensionable emoluments’ in respect of service under the Government of Trinidad and Tobago includes salary, personal allowance, inducement allowance, house allowance or the estimated value of free quarters and any fees paid out of the Treasury by way of salary…

This is in the Pensions Act of 1934 that has been amended as recently as 2010.

So herein lies the crux of the matter:

1. Does the SRC have oversight of pensions? And if so, why were pensions not covered in their 98th Report delivered in November 2013? Was it an oversight? Because for the sub-category of Pension in their report they simply point to whatever pertains in the relevant Acts of the Constitution.

2. Was the SRC stealthily bypassed by the Cabinet and the Opposition in the aftermath of substandard salary recommendations in 2013? Does this ability to bypass the SRC and instead amend Pensions point to a flaw in our Constitution? Is the SRC still a relevant institution?

3. What financial impact will these pension packages actually have on the Treasury? In short, how much more burden will our tax payers have to bear? Especially in light of four massive deficit budgets from current Prime Minister Kamla Persad-Bissessar, and the likelihood of a fifth such Budget in September.

4. Has separation of powers been breached and the Constitution subverted? If the judges are retired, does this make a difference? Will sitting Judges feel indebted to MPs now for improved pension plans in years to come and give them a bligh because of that?

5. Is the addition of allowances to pensionable emoluments really unprecedented? And since they are not, why do I feel as if the way in which these new pensions were calculated is going to give me indigestion and a tax burden that I can’t stomach?

Photo: Opposition Leader Keith Rowley. (Courtesy Jyoti Communication)
Photo: Opposition Leader Keith Rowley.
(Courtesy Jyoti Communication)

We are roughly a year away from the 2015 election period. In the last four years, we have experienced too many instances of the Government brutalising the Constitution and the Treasury for its own ends. We have been subjected to massive budgets and squander mania from Kamla and her Small Goal Squad.

Most recently, we found out that through the LifeSport programme the Government is funding criminals and taking out loans against the treasury to pay these criminals and soon wants another $32 million to pay off debts incurred by this same programme that funds criminals.

Did I mention this government is funding criminals?

Now, in under a week, we learn that both sides of the Parliament, not pleased with the recent salary increases granted to them earlier this year, are now sorting out their retirement.

I can’t say it is illegal. Not yet. The SRC has to clarify whether Pensions really fall under its purview. The Constitution’s language is too vague for me to say so convincingly. I’m hoping the Senate’s debate today throws light.

What I can say is in light of the burden on our treasury and our numerous labour and employment issues this leaves a very bad taste in my mouth.

And I’m giving you, Keith Rowley, a devious cut eye on this one.

De Vice Cyah Done!

 

No footballers were hurt, or red cards given, in the writing of this post.

About Rhoda Bharath

Rhoda Bharath
Rhoda Bharath works as a lecturer by day and remains obsessed with politics by night. Follow her blog here: https://rhoda-bharath-jxtv.squarespace.com/

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7 comments

  1. “Meanwhile, more and more of the animals’ rations are reduced while the pigs continue to grow fatter.” Taken from the book Animal Farm by George Orwell

  2. It is imperative that we find a way to properly express ourselves to the powers that be.

  3. That is the question we have to start thinking more deeply about Cassia. Is marching enough? Has marching ever been enough anywhere in the world?
    Or are new methods necessary to get the attention of the State…

  4. so wat the hell do we do now. because this is a combined effort of both the gov’t and opposition eh.

  5. Corruption is the abuse of entrusted power for private gain. That is what the parliamentarians are guilty of doing with the pensions bill.

  6. i tell u, we in trinidad jokey too bad, this is enraging…