The public purse | You and the Law

By Dr. William Para Riviere

Dec. 20, 2013

The national revenue is held in trust for the citizens of our nation. Further, of all our institutions of governance, the House of Assembly is the only one directly elected by these citizens and, therefore, accountable to them. Taking account of these two realities, the framers of our constitution elaborated its financial provisions in the nature of a body of rules which, in terms of spending public monies, The Political Executive (Cabinet represented by the Minister responsible for Finance) must follow so that the Legislature (House of Assembly) has opportunity to examine, criticize and, so, shape its spending activities.

These rules are set out under Sections 76 to 84 of the Constitution. The point of departure, that is to say, the starting point, is that there are two public funds, the more substantial of which is called the Consolidated Fund. Excepting money payable by law into some other public fund, all revenue which Government raises in Dominica or receives from overseas is to be deposited in the Consolidated Fund. The lesser fund, as its name implies, is called the Contingencies Fund.

The withdrawal of money from either Fund is strictly controlled. As to the Consolidated Fund, Section 77 of the Constitution prohibits withdrawals, except in two situations. One situation is where the withdrawal is for the purpose of meeting expenditure which the Constitution or any other legislation charges to the Fund. The other exception is two-fold: either where the House has passed an Appropriation Law authorizing withdrawal of the said monies; or, where an Appropriation Bill has not yet come before the House, and the expenditure in question is considered "necessary to carry out the services of the Government". The Minister responsible for Finance authorizes the withdrawal.

Expenses charged to the Consolidated Fund by the Constitution include the salaries and allowances of the holders of certain public offices and the country's debt. The officers in question are the President, the Ombudsman, the Deputy Ombudsman, the Chief Elections Officer, the Director of Public Prosecutions, the Director of Audit, and members of the Public Service Commission, the Police Service Commission and the Public Service Board of Appeal. Further, the country's "debt charges" include interest; all expenses incurred in the process of raising loans on the security of the Consolidated Fund such as servicing those loans; and the amortization of any debt, that is to say, the gradual writing off of the initial cost of the debt in question.

Notably, all expenditure paid for from the Consolidated Fund is protected. Thus, unlike where the salaries of public servants are paid late, or fortnightly paid workers on public roads are owed for as many as four fortnights, Government has no discretion in the matter. This is spelt out under Section 77(2) of the Constitution: "Where any monies are charged by this Constitution or any law enacted by Parliament upon the Consolidated Fund or any other public fund, they shall be paid out of that fund by the Government to the person or authority to whom payment is due".

To obtain public monies for the conduct of affairs of state, the Government must follow set procedures. The first step is to prepare and lay before the House of Assembly, Estimates of Revenue (what Government plans to collect) and Expenditure (what it plans to spend) for the coming year. That is the responsibility of the Minister and should be done, quite obviously, before the commencement of the financial year. These Estimates are debated in the House of Assembly and, if necessary, amended. Upon approval of the Estimates of Expenditure a Bill, known as an Appropriation Bill, is introduced, seeking, firstly, to withdraw from, the Consolidated Fund any and all sums of money required to meet the estimated expenditure and, secondly, to obtain this money under separate headings, called "votes", for the various services stated in the Estimates. In other words, the Appropriation Bill states the amount to be spent by each department of Government. Significantly, estimates of expenditure for which the approval of the House is sought should not include items which are charged to the Fund whether by the Constitution or whether otherwise by legislation. Once the Appropriation Bill becomes law, the wheels of financial administration are set in motion. Of course, that is the ideal.

The Constitution in its wisdom makes provision for delays in presenting the Estimates and, by this, in both the approval of these Estimates and the passage of an Appropriate Bill. Provision is made in two ways. It allows the Minister forty-five days "after the commencement of each financial year" within which to prepare and lay the annual Estimates before the House. And, as stated earlier, it invests the Minister with the power to authorize withdrawals from the Consolidated Fund for as many as four months from the beginning of the financial year.

The Constitution also takes account of the possibility that an amount appropriated for a particular purpose might be inadequate for its completion. Or, that an expenditure might be made in respect of a purpose for which no money was appropriated. Or, that there might be a cost overrun in one or other project undertaken. In all these cases, and others, the individual and total sums of money earlier estimated and, therefore, provided for in the Appropriation Law, would be insufficient to achieve the desired ends.

To cure these maladies, provision is made for the presentation of a Supplementary Estimate before the House and, upon approval, for the introduction of a Supplementary Appropriation Bill there by which, on enactment, the required remedies may be administered.

The Constitution goes even further in authorizing Parliament to establish a Contingencies Fund, with part of the public revenues, to address what may be needed in situations of emergency. Section 80 gives the Minister of Finance the latitude to make advances from that Fund where he is "satisfied that there has arisen an urgent and unforeseen need for expenditure where no other provision exists." Further, "as soon as possible" after any such advance is made, a Supplementary Estimate and, "as soon as possible" after approval, an Appropriation Bill must be tabled before the House "for the purpose of replacing the amount so advanced."

The Director of Audit is a key figure in the system of Parliamentary control of finance. The holder of that office is charged with auditing and reporting "at least once in every year" on the nation's public accounts, as well as on the accounts of all officers and authorities of the Government, the accounts of every Commission set up by the Constitution, the accounts of the Clerk of the House and, if we had one, the accounts of the Ombudsman. To carry this out, the Director of Audit is given access to all books, records, returns, reports and other documents which, "in his opinion," relates to these accounts. Further, he or she must submit a Report of his work to the Minister responsible for Finance; and, in response the Minister must lay it before the House of Assembly "not later than seven days after the House first meets" after he or she has received the report. If the Minister fails to do so, the Director of Audit is obligated to transmit copies of that report to the Speaker. And the Speaker must "as soon as practicable" present these copies to the House. The Report is examined by the Public Accounts Committee of the House.

The Director of Audit, as a matter of law, enjoys much independence and is not directly subject to manipulation by the Political Executive. The Office is a public office. By section 89(1) of the Constitution, the holder of the Office is appointed by the President acting in accordance with the "advice" of the Public Service Commission. He or she, as in the case of Permanent Secretaries, may be terminated "only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or other cause) or for misbehavior." And Section 83(7) of the Constitution stipulates that in the exercise of his (or her) functions," the Director of Audit "shall not be subjected to the direction or control of any other person or authority." This notwithstanding, attention must be directed to two facts. The first is the extraordinary power invested in the country's Prime Minister to not only select, but to also remove, members of the Public Service Commission, the body which advises the President on the appointment of the Director of Audit. The other fact is that, before so advising the President, the Commission "shall consult" the Prime Minister.

The Public Accounts Committee of the House is also critical to proper management of our national revenue. It is a non-partisan body, chaired by the Leader of the Opposition. Its role is to examine government spending and, in particular, to ensure that money granted has been applied to the objects which the House prescribed. It bases its examination on the Report of the Director of Audit that is supposed to be presented annually to the House. The Committee has authority to ask questions of Government Officers, as well as to report to the House on the conduct of any Government department. That is a matter of law. In practice our Public Accounts Committee has had little, if any, impact.