As expected, the anti money laundering and countering the financing of terrorism legislation (AML/CFT) has not been passed in the National Assembly. The months of discourse, debate, committee meetings, efforts to compromise, public statements, even a visit by a CFATF official, have not yielded any positive results.
The losers and victims of the failure to pass the legislation will be the people of Guyana. The proposed amendments required a special effort to be flexible. Striking compromises would have been a win-win result for both Government and Opposition and for the people of Guyana. But compromising in Guyana’s politics shows weakness and is regarded as a bad precedent. It is not yet appreciated that compromise can demonstrate statesmanship which the electorate will welcome.
The major issues of contention are the appointment of the Director of the Financial Intelligence Unit and the establishment of the Procurement Commission.
For the Director, a fair compromise would have been his/her appointment by the President after consultation with the Leader of the Opposition. Consultation today means ‘meaningful’ consultation. The word ‘meaningful’ was added to the word ‘consultation’ in the Constitution by the 2001/2002 constitutional reforms because of the perfunctory consultation process which took place in the Burnham era. It is today hardly possible under this new regime of ‘meaningful’ consultation for the President to appoint someone if the Leader of the Opposition disagrees.
The right of no objection for the Cabinet of awards of contracts by the Procurement Committee under the Procurement Act, demanded by the Government, is already justiciable. An awardee whose contact is objected to by the Cabinet has the right to challenge that decision in Court. In recent years the reach of public law with its ancient but unique and powerful remedies have extended to all decisions by state authorities, and is likely to extend to a Cabinet objection, except where the Constitution protects such a decision from challenge. In this case it does not.
The Government therefore might well have been advised to seek or to accept a compromise by which an approach to the court by an awardee is regulated in such a way as to preserve some protection or advantage for the Government. As it is, its insistence on the no objection, without more, in the belief that it would bring an end to the award that is objected to, is misplaced. By failing to explore options, many of which are available but beyond the capacity of this article, the Government has lost an opportunity for a compromise solution which may well have been in its interests and acceptable to the Opposition. All parties stood to gain.
This bill is of great importance to Guyana. Its comes after two years of skirmishes between the Government and the Opposition, with an intensification of bitterness, hostility and reducing trust after each disagreement. Guyanese are baffled by the intransigence which pervades our political process with no sign or hint of any intention to seek a way out of the political impasse which has emerged as a result of the 2011 elections. Now, as a consequence of the failure to arrive at an agreement on the AML/CFT legislation, as one late and lamented, but much loved comrade in the PPP used to say: ‘The chickens have come home to roast.’
The consequences of failing to compromise resulting in the legislation not being passed cannot be anything but be dire. It is not possible to see how the Government can continue in this way without resorting to the electorate. Continued governance in a state of parliamentary impasse is not an option for the way forward. The skirmishing will continue and inevitably, another major issue will emerge which will defy compromise. The budget is soon to be presented.
What next, is the question?
The Government will obviously be thinking of the future and one, certainly unwelcome but perhaps inevitable option, will be elections in the hope that it will recapture its majority. The Government would think It is too early for elections because it needs more time for some governmental achievements arising from a growing economy to present to the electorate. It also needs more time to restore its organizational capacity to what it was in its fighting days.
For the Opposition this is absolutely a bad time to go to elections because it needs more time to raise funds, to organize and to develop a message. And if the AML/CFT legislation is the occasion for the elections, it will be on the back foot in the campaign, being accused of sabotaging the country. Already accusations of blackmail are being hurled. It would have been preferable if elections were not held in these circumstances but no one can see any way out of this gridlock.
The Government at first expected the National Assembly to bend to the will of the executive, propounding a theory that the executive is entitled to parliamentary support by virtue of it merely being the lawfully constituted executive. This was quickly shattered by the refusal of the Opposition to subscribe to such a ridiculous constitutional concoction. Serious efforts to compromise cannot be replaced by constitutional posturing or public acrimony.