Is the 2021 budget legal?
22 November 2020
BRYAN KRAMER MP
| The Kramer Report | Edited
PORT MORESBY - During the sitting of parliament on Tuesday 17 November, the Marape government tabled and passed the K19.6 billion 2021 budget.
Unlike the usual convention where the treasurer presents the budget and parliament is adjourned for a week to allow the opposition to reply, the 2021 budget was tabled and passed on the same day.
In response, former prime minister Peter O’Neill issued a statement saying that the sitting of parliament and the tabling and passing of the 2021 Budget was illegal.
“The 2021 Budget was not printed, which is illegal, and the enabling legislation was not printed,” O’Neill told reporters outside the courthouse after he failed to obtain a stay order against parliament sitting.
O’Neill claimed there were only 42 members sitting in parliament, while another 69 were outside Port Moresby and unable to attend.
“Today they can only show 42 members on the floor, they don’t have the numbers, they can’t pass the budget, they can’t pass laws,” O’Neill said.
Former attorney general Davis Steven, who had crossed to the floor to join the opposition, also issued a statement saying that the passage of the budget was illegal.
“It is clearly illegal, prime minister James Marape and the speaker all know that the bill has not been certified by both the state solicitor and first legislative counsel,” Steven claimed.
“This is a clear indication that the laws have been broken, procedures not followed, parliament is abused, resulting in a bad law to be passed. Where is respect for the constitution and rule of law?”
Opposition leader Belden Namah responded by asking how the government could pass a budget that the opposition had yet to see and without access to budget books.
“How can members pass, on voices, a budget that they have not seen yet, adding there are no books in front of them,” Namah is reported to have said.
He also supported Steven’s claim that the passage of the budget was not certified by the solicitor general and the first legislative counsel.
Namah said he will not study the budget because it is not the budget of the country, adding that it had not been studied properly, debated on and properly voted on by the majority of members.
So is the 2021 Budget legal?
The sort answer is ‘yes’.
The national budget is passed every year in the month of November.
Section 209 of the constitution states that each fiscal year there shall be a national budget comprising the estimated finances to be raised and to be spent by the national government.
It is to include separate appropriations for the public service, parliament and judicial services.
The same section also states that raising and expenditure of public funds by the national government including taxation and raising of loans is subject to authorisation and control by the parliament and shall be regulated by an act of parliament.
Therefore, the government cannot spend a single toea of public funds unless it is provided for in the budget and approved by parliament, regulated by an act of parliament.
An act of parliament is passed by introducing a bill (a document proposing a new law). Once passed by parliament it becomes an act.
Acts of parliament that relate to expenditure of public funds are referred to as appropriation bills.
The government is required to table a national budget comprising estimated funds it expects to raise (revenue and loans) and funds it expects to spend for public services, judicial services and parliamentary services.
These three services make up the three arms of government – public service being run by executive government (NEC), judiciary representing the courts, and parliament representing the members of parliament who represent the people.
In November, the minister for treasury prepares and tables three appropriation bills:
1) Appropriation for general public service for operational and capital expenditure - spending for public service payroll, goods and services to run government departments and for expenditure on infrastructure.
2) Appropriation for national parliament service for operational and capital expenditure – funding for parliamentary staff and the members of parliament payroll as well as goods and services needed to keep parliament operating.
3) Appropriation for judicial services for operational and capital expenditure - to run the courts, payroll and services.
Each act is only a few pages long. The amounts are provided in lump sum stating the appropriation is to be made available from the consolidated revenue fund for the year ending 31 December.
The consolidated revenue fund is the government bank account into which all taxes, internal revenue commission receipts, dividends etc are paid. It is held with the central bank. When the government issues cheques, they are paid from this account.
In the 2021 Budget, the treasurer tabled three bills as follows:
1) Appropriation (General Public Services Expenditure 2021) Bill 2020, for K19.2 billion
2) Appropriation (National Parliament 2021) Bill 2020, for K137 million
3) Appropriation (Judicial Services 2021) Bill 2020, for K223.9 million
Standing Order 237 of parliament states that an appropriation bill may be submitted to parliament by a minister without notice. So, contrary to Namah’s claims, no notice is required.
Standing Order 238 states that an appropriation bill shall not be made unless the purpose of the appropriation has, in the same session, been recommended to the parliament by a message from the governor general.
At the second reading of the bill, the speaker reads out the message from the governor general. This requirement was met on Tuesday.
Standing Order 195 of Parliament states that no bill shall be submitted to the speaker for his certification until it has been read three times before parliament and otherwise ordered by parliament and considered by parliament committee after the second reading.
The first reading of the bill is done by the clerk by reading out the title of the bill.
Standing Order 197 says the sponsor of the bill (in this case the minister of treasury) is called to sit at the desk on the floor of parliament and lay the bill on the table, accompanied by any such supporting documents that he thinks necessary as information for parliament.
In the past such supporting documents have been large budget books, but this is optional to the minister. There is no obligation to table additional documents. So the budget books are not a requirement under standing orders, as claimed by O’Neill and Namah.
Standing Order 200 states that the second reading may be moved immediately after the bill is read a first time, but only after a copy of the bill has been circulated by placing a copy on the desk of every member.
This order was carried out on the day the bill was presented. Parliament staff provided copies of the bill to each member of parliament.
After moving the motion, the member (treasurer) then gives his (budget) speech. Members of parliament may then debate the motion whether or not the bill should be read a second time.
After debate, members will ask the question be put.
Standing Order 163 states that a question being put shall be resolved in the affirmative (yes, or aye) or negative (nay, or no) by the majority of voices.
Voting by voices is where members call out in the chamber aye or no to the question. In this case, the question being put is whether the bill will be read a second time.
The speaker will make a decision as to whether ayes are the majority or the nays. If, in the speaker's opinion, the no’s have the majority, he will say the no’s have it and the bill will be defeated and disposed of. If he rules the aye’s (yes) have it then the bill will move onto the next stage.
A further procedure after the second reading includes the bill having been agreed to by the parliamentary committee responsible for plans and estimates.
In this case, governor Allan Bird is the chairman of committee for plans and estimates. He confirmed to the parliament that they had met and commended the budget.
After the second reading, the members may debate the bill, should they choose to. After debate has taken place, the member may ask the speaker that the question be put that the bill be read a third time.
The speaker will then ask if the bill be read a second time. Those in favour say aye and those against say no. On Tuesday, he ruled that the ayes had it.
The speaker will then ask the clerk to read the bill a second time.
The speaker then asks parliament to agree the bill be read a second time. Those in favour say aye, those against no. On Tuesday, he ruled that the ayes had it.
Standing order 203 states that, immediately after the second reading of the bill, a message in accordance with standing order 240 recommending the appropriation may be announced by the governor general.
The Speaker read out the message by the governor general recommending the appropriation bills tabled by the parliament.
The minister for treasury then moved the motion a third time. The speaker asked if the bill be read out a third time, those in favour say aye, those against no.
The Clerk then read the bill a third time, after which it was formally passed.
After the third reading, the bill having been passed by parliament, became an act. However, an act does not come into effect until it is certified by the speaker and gazetted.
Was the budget bill properly certified? Yes, it was. Correct certifications were received from both state solicitors and first legislative counsel, as required.
Many people have asked whether a government can pass the budget (a law) with less than half the members of parliament present.
The constitution (section 114) provides for voting in parliament and states that, except where the constitutional law or standing orders require it, all questions before a meeting of the parliament shall be decided in accordance with the majority of votes of the members present and voting.
This is not the majority of seats in parliament. Therefore, the passage of bills does not require a 56 seat majority.
For example, to pass constitutional law, the votes require a two-thirds majority, or 74 votes. To suspend standing orders without notice requires an absolute majority, being 56 seats.
O’Neill claimed that only 42 members of parliament attended Tuesday’s parliament sitting. The remaining 69 plus were outside of Port Moresby and could not attend.
This is false and misleading.
The actual number of members on the floor was 51. Only 42 members were in Vanimo. Ten others were in Port Moresby.
O’Neill was in Vanimo but was able to fly to Port Moresby after the speaker’s announcement that parliament would resume on Tuesday.
If O’Neill could make it back in time to try to file a stay, there is no excuse for others to remain in Vanimo.
The fact is they had no intention to attend parliament, but were instead relying on O’Neill to obtain a court order preventing parliament convening on Tuesday.
A move that failed. Badly.
Parliament conducts its business on the floor of parliament in accordance with the law and standing orders of parliament so if the opposition is not going to bother to turn up then it shouldn't bother complaining about whether it is legal or illegal.
Yes, it was legal.
There has been a saying that sounds something like “two songs don’t make a sing quite”. Well that wasn’t the saying but that’s how it might sound for a person who is somewhat unable to hear.
I can say that with confidence and authority, as I have a lifetime of such experience.
In fact it is entirely possible that there are people who have been unable to hear or read or to receive intravenous ‘top up’, and can validly say they were blithely unaware of the rules of parliamentary processes, having only an elementary grade learning and that mostly of parrying, and parleying, but not parliament-ing.
Some plead, others sorrow…(or as KJ might suppose)…some lead, others fallow.
As the academic year draws to a Covid19 laden close, all eyes are going to be on the granting of awards. Not that findings of an august PNG National Court are in any way to be likened to awards of learning, but for many electors the deliverance from a formal legal process is for learning of a past event and guidance of parameters for any such in future.
Then in future, opportunity with test where any tok sing is not quite.
Posted by: Lindsay F Bond | 22 November 2020 at 05:19 PM