Delroy Cuthkelvin’s View of PetroCaribe

Wednesday, April 29th, 2015.  By Delroy Cuthkelvin: Let me preface my comments on the issue in question by stating that while I remain an active member of the United Democratic delroyParty, I am currently not engaged as an employee of the Government of Belize, which means I am free to openly express my views on public affairs and government policies without such pronouncements constituting a conflict of interest or being regarded as the authorized position of any government official or office.

I do wish, however, that our UDP leaders in Government would objectively consider the thoughtful and candid views and concerns I am about to express, particularly since they come from someone who only wants the best for my own party which many of us have worked hard to elect and re-elect.

Let me state, for the record, that under this Dean Barrow Administration Petro Caribe itself is an excellent and beneficial program for Belize, but the PETROCARIBE LOANS ACT, 2015 is a law that I find troubling, if not frightening, and ironically retrogressive in the overall context of a presumably deepening democracy. It is a historical fact that thousands of Belizeans, myself included, fought fiercely, endangering our very lives, against the Musa Administration, pressuring it to comply with existing laws and to improve those laws to prevent further abuse and misuse of public funds.

Let me pause here to clarify that I am by no means implying that there is abuse or misuse of public funds, Petrocaribe or otherwise, by this Dean Barrow Administration to any extent that remotely resembles the record of the Musa Administration which provoked the tumultuous events of 2005. And certainly, whether or not one agrees with the projects funded by the Petrocaribe loans, none can gainsay the visible progress, yeah, the transformation that is occurring on the ground.

That, however, is not the principal issue here. It is an issue of Governance; not about what Government spends the money on, but how it goes about doing so; not whether the public investment is a good one, but whether it is undertaken in compliance with the laws and procedures that govern public borrowing and spending. The very fact that the Government has had to introduce a new law to regularize its loan arrangements and spending through the Petrocaribe facility confirms, even to a legally untrained mind, that some law was being violated; or to employ a kinder, gentler term, at least ‘ignored’ or ‘overlooked’.

One only needs to read a particular paragraph of the new law to figure out what specific law was being ‘overlooked’ or ‘ignored’. That paragraph reads as follows: “Notwithstanding anything contained in the Finance and Audit (Reform) Act, 2005, or any other law to the contrary, it shall be lawful for the Government of Belize to borrow money from ALBA Petrocaribe (Belize Energy) Limited in any amounts without the prior authorization of the National Assembly and to enter into a loan agreement with APBEL for the said purpose.”

That, to me, is plain and simple English. As we once told a senior UDP attorney on a particular occasion, “You lawyers are trained to read and interpret; we laymen have learnt to read and understand.” One needs no legal training to understand that the primary purpose of this new law is to legalize actions which, were it not for the new law, would be in contravention of the Finance and Audit (Reform) Act, 2005 and perhaps some “other law to the contrary”, quite likely the Belize Constitution which in Section 114 (3) reads, “No moneys shall be withdrawn from any public fund other than the Consolidated Revenue Fund unless the issue of those moneys has been authorized by a law enacted by the National Assembly.”

Of course, now that the new law has been passed, such actions can be regarded as lawful. Not only that; the new law also presumes to legalize such actions undertaken prior to its passage, through an additional clause which reads, “Without prejudice to the generality of the foregoing provisions and notwithstanding anything contained in the contrary, the following agreement and the borrowings are hereby validated and confirmed retrospectively.”

And it goes on to spell out what those agreements and borrowings are: “(a) Loan Agreement dated 18 September 2012 between the Government of Belize and ALBA Petrocaribe (Belize Energy) Limited; (b) Borrowing of US$114,307,356 by the Government of Belize from APBEL during the period September2012 to August 2014, under the aforesaid Loan Agreement; (c) Borrowing of US$28,776,243.39 by the Government of Belize from APBEL during the period September 2014 to February 2015 under the aforesaid Loan Agreement.”

So, what is it about those agreements and borrowings that constituted a violation, or ‘overlooking’ or ‘ignoring’ of the Finance and Audit (Reform) Act, 2005? Clearly, it is the fact that such agreements and borrowings were undertaken without prior authorization of the National Assembly. The pertinent portion of the Finance and Audit (Reform) Act, 2005 stipulates unequivocally and in plain English, “Any agreement, contract or other instrument effecting any such borrowing or loan to the Government of or above the equivalent of ten million dollars shall only be validly entered into pursuant to a resolution of the National Assembly authorizing the Government to raise the loan or to borrow the money.” Again, like any modestly educated layman, we have read and understood.

delroy 2Now, under the new Petrocaribe Loans Act, 2015, the Government is free to undertake such agreements and borrowings without prior approval of the National Assembly. So, presumably, it is now lawful; but how democratic is it? Clearly not too democratic, as it was people pressure, in the first place, that forced the enactment of the Finance and Audit (Reform) Act, 2005, which explicitly spells out this requirement of prior authorization by the National Assembly for loans of 10 Million or more.

Herein lies another troubling point: if the people’s elected representatives cannot debate the merits or demerits, the desirability or undesirability of the projects in question before they are undertaken or implemented, then how democratic do we really intend to be as it pertains to borrowing and spending through the Petrocaribe facility? The ensuing portion of the new law answers this explicitly: “No limitations shall apply to the use of the money borrowed from APBEL and it may be used to finance capital projects as well as to provide social and community assistance to the poor and the socially marginalized, and any other legitimate purpose as the Government may consider fit.”

Clearly, ‘the Government’ here refers, for practical purposes, to the Executive Branch headed by Cabinet, as all of this is being done without prior authorization by the National Assembly.

The System of Government under which we operate is structured to have clear separation of powers between the Executive Branch (Cabinet) and the Legislative Branch (National Assembly). There is a very good reason for this, particularly where the House of Representatives is concerned, that reason being that representatives have the responsibility and obligation to champion the interest of the constituency and voters that elected them, which might not necessarily align with the proposed policies of Cabinet.

What if, for example, a UDP (or PUP) area representative wants to make a case for his people that certain monies from the Petrocaribe Loans would be better spent on a particular project in his constituency than on some other proposed project in another constituency? Would not the new Petrocaribe Loans Act, 2015 deny him the opportunity to make that case, thereby rendering him ineffective and useless as an elected representative for the people of his constituency? And if he is only able to agree or disagree retrospectively, what practical purpose would that serve when the spending had already been done?

In conclusion, I personally believe the attempt by our Prime Minister and Government to fast-track borrowing and spending under the Petrocaribe Program is well-intentioned. This Government’s track record in executing the projects and the evidence of transformational development on the ground bear this out. But as that trite and true aphorism goes, “the road to Hell is paved with good intentions”. With all the good intentions, we could well be headed to ‘Parliamentary Hell’ on a fully-cemented street or hot-mixed highway.

Notwithstanding the outstanding track-record and good intentions of our Prime Minister and Government, I humbly submit that this is a wrong law, one that flies in the face of Democracy, and one that reverses significant gains made by the Belizean People, the price for which many of us paid with teargas, pepper spray and rubber bullets back in 2005; gains which our own UDP Government increased by adding penalties for contravention of the Finance and Audit (Reform) Act in an amendment enacted in 2010. What’s the point of reversing all this gain in 2015?

A United States politician once lamented of his own Government, “What we came to Washington to change, we became.” The record of the Musa Administration in its abuse and misuse of public funds is well documented. Let it never be said of our UDP Party and Government, not even in the least, that what we came to Belmopan to change, we have become!


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