IN this installment, I will examine a motion moved in the National Assembly by Mr. Carl Greenidge which was debated and opposed by the government but which was passed by the National Assembly by the use of the one seat majority held by the Opposition. I will set out herein some of the objections which I proffered thereto in the debate of that motion.
The motion under examination bore the title  ‘Agencies charged with Extra-Budgetary Funds’. The pith and substance of this motion is captured in its final resolve clause. It states as follows:  “that the relevant Minister ensure that all agencies authorized to have Extra-Budgetary Funds under the Act… be immediately required to pay into the Consolidated Fund all balances held in their accounts and a Statement of such payments be submitted to the National Assembly ….”
In short, the motion seeks to compel the relevant Minister to deposit into the Consolidated Funds, all monies held in extra-budgetary funds.  This, I submit, is not only unconstitutional and in violation of the Fiscal Management And Accountability Act 2003, but it defeats the very purpose for which an extra-budgetary fund was created, that is, so that its monies can be kept separate and apart from the Consolidated Fund. Yet, this motion was passed by the National Assembly despite the most compelling and cogent arguments advanced, supported by both the Constitution and several provisions of the Fiscal Management And Accountability Act 2003, [herein after referred to as the FMAA Act].

THE CONSTITUTION
A convenient point to begin is with the Constitution.  Article 216 provides thus:
“all revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund”.
Clearly, the Constitution permits revenues and monies to be kept outside of the Consolidated Funds if an Act of Parliament so provides. It is in this very category that extra-budgetary Agencies and their funds fall.  They are statutory creations of the exact genre contemplated by and provided for in the said Article 216, as an exception to the Consolidated Fund.  So without more, Article 216 demolishes the pith and substance of the motion.  The National Assembly, by passing that motion, has acted in complete disregard of Article 216 of the Constitution.  The National Assembly, as a creature of the Constitution, has no power whatsoever to act contrary to and in disregard of that instrument which not only created it but is by Article 8, declared to be the supreme law of the land. While the National Assembly is imbued with wide constitutional freedom to regulate its own procedure and conduct its own proceedings, this very freedom is subject to a constitutional fetter.  Article 165 of the Constitution provides thus:
Art. 165 (1) Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure and may make rules for that purpose.
Perhaps reference to a judicial authority may make the point more proficiently.  In Delille And Another v Speaker of the National Assembly 1998 7 BCLR 916, the High Court in Cape Province, South Africa was considering section 57[1][a] of the Constitution which permits the Assembly to determine and control its internal arrangements proceedings and procedures. This section is similar to Article 165 of the Guyana Constitution.

Hlopha J. at page 938 said:
‘It does not, however follow that the Assembly can do so in a manner inconsistent with the constitution. The exercise of the power conferred on the Assembly by Section 57[1][a] remains subject to the Constitution and subject to constitutional review by the courts.’

THE NATURE OF EXTRA-BUDGETARY AGENCIES
Indeed, extra-budget agencies, by their very nature were conceived and designed so that its funds are to be kept separate and apart from the Consolidated Fund.  These agencies form part of the financial architecture of almost every civilized nation in the modern world and certainly they obtain in the Commonwealth Caribbean in an almost identical fashion as they do in Guyana.  Their utility is recognized by the International Financial Institutions who actually recommend their establishment and proliferation.  The rationale appears to be that public funds available apart and separate from the consolidated fund lends flexibility, stability, security and greater autonomy to the state’s financial infrastructure.

An extra-budgetary fund is defined by the FMAA Act as “a fund established by an Act for a specific purpose and funded by specific earmarked revenue that operates apart from the Consolidated Fund….”  The fact that extra-budgetary funds are to be maintained as separate and apart from the Consolidated Fund is the subject of express provisions of the FMAA Act.   Section 37 (1) and Section 38 (1) provide as follows:
S. 37(1)   All public moneys shall be classified as either-

(a)    received moneys;
(b)    moneys in the Consolidated Funds, including any moneys in the Contingencies Fund;
(c)    moneys in an Extra-budgetary Funds;
(d)    drawn moneys; or
(e)    moneys in a Deposit Funds.

S. 38(1)    All public moneys raised or received by the Government shall be credited fully
and promptly to the Consolidated Fund, except –

(a)    moneys credited to an Extra-budgetary Fund as stipulated in the enabling legislation establishing that fund;

From the above provisions of the FMAA Act, it is patently clear that extra-budgetary funds are, statutorily, to remain separate, distinct and apart from the Consolidated Fund.  The pith and substance of the motion is, therefore, in violation of both the Constitution and the FMAA Act.  Yet and in spite of these objections which I and other members of the government benches raised in the debate, the majority of one proceeded to pass the motion, in gross violation of the laws of this land.

EXTRA-BUDGETARY FUNDS ARE AUDITED
I must point out that all extra-budgetary funds are required to be audited and are indeed audited by the Auditor General as mandated by the provisions of the FMAA Act.  The Auditor General Report and Audited Financial Statements of these Agencies are placed before the National Assembly and then transmitted to the Public Accounts Committee chaired by the very Mr. Greenidge for detailed scrutiny.  This Committee has wide ranging powers to subpoena persons and records before them for examination.  To request, therefore, by motion, that these very documents to be laid before the National Assembly by a Minister, is unnecessary and an abuse of the process of the National Assembly.  The mechanism is already established for this to be achieved.  Some of these reports are indeed outstanding and every effort is being made to correct this inefficiency.  But a mere question to the subject Minister could have conveyed the request for these reports to be laid. Instead, the elaborate, unnecessary and erroneous process of a motion was utilised.
Further, I am advised that at periodic intervals, funds from extra-budgetary agencies are transferred to the Consolidated Fund, when it is deemed necessary by those in charge of the financial affairs of those agencies.  Incidentally, many of these agencies are autonomous of Central Government and are managed by a board.  Ministerial directions, especially, in respect of their financial affairs, can provide fertile ground for the very opposition to cry “executive interference” or “control freakism”.  In any event, it is open to the Auditor General to so recommend.  Therefore, Mr. Greenidge is free to raise this query with the Auditor General at the level of the Public Accounts Committee.  This option is appreciably more appropriate than engaging the entire National Assembly by motion.

CONCLUSION
In conclusion, I respectfully submit that in passing the aforesaid motion in the manner formulated, the National Assembly failed to pay any regard to the Constitution and the express provisions of the FMAA Act and indeed, have violated both. In sum, the National Assembly, by motion, has mandated the relevant Minister to deposit into the Consolidated Fund, all extra-budgetary funds when the combination of the  Constitution and the law of the land compel him to keep these very funds separate and apart from the Consolidated Fund.   It unfortunately demonstrates that the majority of one is bent on achieving an end irrespective of how unjustifiable, unconstitutional and unlawful the means maybe. In the face of such parliamentary heresy, the Speaker appears powerless. In such circumstance, the luxury of silence is not an option available to an Attorney-General.