Friday, August 28, 2009

The constitutionality of the $50 000 terminal grant for MP’s spouses: A layman’s perspective.

Dear Readers,

As reported in the media, the $50 000 spousal grant awarded by the Parliamentary Entitlements Commission (PEC) to MP's spouses has been referred to the Parliamentary House Committee for inquiry and/or review. This procedure is provided for under Section 70 of the Standing Orders of the National Parliament of Solomon Islands, which allows the Parliamentary House Committee "to consider and advise appropriate authorities on such matters that are connected with Members' terms and conditions of service" and "to examine and make recommendations on any matters which are connected with the provisions of sections 62 and 69 of the Constitution" to name but a few of its functions. Also the Attorney-General on behalf of the government has also referred the matter to the courts for clarifications. These are two totally separate processes and the decision of the court will not affect the outcome of the parliamentary inquiry into the matter, and vice versa.

Thus I hereby wish to share my layman's perspective on the issue and hopefully generate some discussions and in so doing we can all share and learn from each others thoughts.

My layman's view of the $50 000 terminal grant for MP's spouses is that it is unconstitutional and does not serve as a good precedence for the future of Solomon Islands in relation to responsible governance and sound democracy. I will present my argument based on Constitutional provisions related to the following:
(1)The purpose and function of the PEC and,
(2)Factors of consideration required for the determination and/or amendment of parliamentary entitlements by PEC.

The purpose and function of PEC .

As you are aware, the PEC is established under the Section 69A of the Constitution of Solomon Islands ... "to determine the entitlements of the parliamentarians and to amend them by yearly review..." [Section 69B (1) of the Constitution].

Entitlements is defined by Section 69C (2)(a) to "include salaries, allowances and such other benefits, services or facilities, whether in cash or otherwise, as the Members of Parliament (Entitlements) Commission may consider it necessary to be provided to the Parliamentarians to enable them to maintain the dignity of their office". A parliamentarian is defined by Section 69C (2)(b) to mean "the Prime Minister, Ministers, the Leader of the Opposition, the Leader of the Independent Group, the Deputy Speaker and all other members of Parliament, whether or not, Parliament is in session or in sitting".

Hence, obviously the main function of PEC is to determine the entitlements of parliamentarians who, as defined are elected politicians. That responsibility is exclusive and only people who fall under the definition of being a parliamentarian are eligible to 'receive' or 'benefit' from the entitlements. Sections 69B (1), 69B (2)(b)(iii), 69B(2)(c)(i), 69B(2)(c)(iv), 69B (3)(b), 69C (1) and 69C (2)(a) of the Constitution all used the word parliamentarian and never in the Constitution has the word 'parliamentarian's spouse' appeared. The only provision that comes close to including a parliamentarian's spouse is Section 69B (3)(a). However, the use of the word and in 'parliamentarians and their families' instead of or to me implies that their families are not mutually exclusive of the parliamentarians and hence they can only 'receive' and 'benefit' indirectly through the parliamentarian. It emphasises that in between the PEC and the family is the parliamentarian and the family is related or connected to the PEC through the parliamentarian. Therefore, it is wrong for the PEC to directly award the 'family' which includes the spouse with any benefits without channelling it through the parliamentarian entitlements. Any benefits that the family should receive must or can only be awarded and considered as part of the 'parliamentarian's entitlement'.

In addition, awarding the spousal terminal grant would create a dangerous paradigm that by being part of a parliamentarian's family equals automatic qualification for direct benefits from the PEC. It would mean that even the sons and daughters of a parliamentarian can be given terminal grants if approved by PEC. And by directly awarding the terminal grant to the spouses outside of the normal parliamentarian's entitlements payment the PEC literally recognises the spouse as a parliamentarian. This judgment is made based on the understanding that at the end of the term the spousal terminal grant of $50 000 will be paid directly to the spouse and not through the parliamentarian as this is totally separate from the parliamentarians terminal of $100 000. Obviously, in the long run the current spousal grant will only create more controversy and confusion by the public in the functions of the PEC. A spouse is a 'wife' or 'husband' and not a parliamentarian as defined by Section 69C (2)(b) of the Constitution and the PEC only determines the entitlements of Members of Parliament, as clearly stipulated by Section 69B (1). The law as it currently stands does not regard a spouse of a parliamentarian as having similar privileges as the parliamentarian himself hence they are not entitled any direct benefits under the PER.

Factors to consider by the PEC in its determination and/or amendment of Parliamentary Entitlements

I will now move on to the second ground of my submission, which is based on the factors provided for by the Constitution for the PEC to consider in its determination and/or amendment of Parliamentary Entitlements.

Section 69B (2) (a), (b) & (c) of the Constitution outlines a number of factors that the PEC has to consider in exercising its powers. Section 69B (2)(b) (i) & (i) includes:
(i) the state of the national economy and the financial position of the Government;
(ii) movements in the level of the pay and other entitlements admissible to other persons in employment;

Sections 69B (3)(b) stipulates that (3) "In making or amending the regulations, the Members of Parliament (Entitlements) Commission shall –
(b) secure that the salaries and other entitlements of Parliamentarians increase at no less a rate than the rate of increase, if any, of salaries and entitlements (taken as a whole) of the public officers.

When looking at these constitutional provisions in relation to the PEC's award of spousal terminal grant, it is to very obvious that the members of the PEC have not complied with the above factors of consideration.

Solomon Islands is still recovering from the experience of the ethnic tension which has brought chaos to the social and economic systems of the country. Hence, the fiscal position of the economy is far from being stable and the peace and security in the society is still very fragile. Additionally, it has been predicted that in the 5 to 10 years time logging revenue, the economy's biggest earner, will drop due to depletion of our trees. The fishery industry continues to struggle financially and the challenges faced by the tourism are far from over. Above all, with the current global economic crisis, there has never been a time in our short history that our economy needs salvaging. Therefore, obviously the state of the national economy does not warrant for the award of $50 000 spousal grant, let alone further increases to the parliamentary entitlements.

Since 2000 the parliamentary entitlements have increased to almost 100% in total. Comparably, increases in the minimum wage of employees, the COLA and other salary/allowance adjustments/entitlements of public officers have not even reached 10%. The SIPEU log of claims and other outstanding claims by other peoples within the country have been long ignored by successive governments. Yet the PEC has seen it fit to approve the $50 000 spousal terminal grant, which in itself is a total payment of $2,500,000, to be paid out from public funds. This amount, added to the current parliamentary entitlements will create a massive burden on the government and economy of the country when the current parliament dissolves and all the payments are due.

Given these considerations, it does not require much effort to figure out that the above factors of consideration, provided for by the Constitution to the PEC in the exercise of its powers have not been adhered to by the Members of PEC when the spousal grant was determined. Hence, in my layman's view I strongly believe that the award of the spousal terminal grant of $50 000 by PEC is not only unconstitutional but sets a bad precedence for responsible governance and sound democracy in Solomon Islands. Thus, it must be nullified and the PEC's decision revoked.

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