By Richard Bhainie
JUSTICE Nareshwar Harnanan, sitting in the High Court of the Supreme Court of Judicature on Friday dismissed a Notice of Application seeking a number of Orders prohibiting the consideration and approval of budgets for Constitutional agencies and disbursements of budgetary sums to those agencies.
Attorney-at-law Roysdale Forde, S.C, appearing in association with a battery of lawyers from the A Partnership for National Unity + Alliance for Change (APNU+AFC) on February 22, 2021 filed a Fixed Date Application contending that the recent amendments to the Fiscal Management and Accountability Act (FMAA) is unconstitutional.
A Notice of Application was also filed along with the Fixed Date Application in an effort to maintain the status quo until the contentions in the Fixed Date Application are heard and a decision rendered.
The matter was filed on behalf of Opposition Member of Parliament, Ganesh Mahipaul and General Secretary of the Guyana Teachers Union, Coretta McDonald, along with a number of other individuals.
The respondents named in the matter were Attorney-General Anil Nandlall, S.C; Senior Minister within the office of the President with responsibility for Finance, Dr. Ashni Singh, and 18 constitutional agencies.
In the Notice of Application, Forde sought a number of Conservatory Orders as interim relief to prohibit the Minister with responsibility for Finance from presenting before the National Assembly for consideration the budgets of these constitutional agencies.
He also sought orders prohibiting the Speaker of the National Assembly from considering the estimates, and to prohibit the Minister with responsibility for Finance from disbursing any monies approved by the National Assembly for these budgetary constitutional agencies.
On Thursday, budgetary estimates for the 2021 Budget were approved by the National Assembly, and the Appropriation Bill was passed. The Bill received Presidential Assent on Thursday evening, and was published in the Official Gazette on Friday.
The Attorney-General submitted to the court that all of the Orders requested in the Notice of Application were overtaken due to the fact that the Appropriation Act 2021 was passed, and the Minister with responsibility for Finance was likely already in the process of effecting disbursements.
The Attorney-General also argued that the Notice of Application was misconceived and without merit, because it sought to put the Appropriation Act 2021 on hold by a challenge to the Fiscal Management and Amendment Act in the Fixed Date Application on the basis of alleged unconstitutionality.
“Many of the Orders sought to stop these budgets from being passed, those orders obviously were overtaken by time, and they could not have been stopped anymore, so they failed naturally by fluctuation of time, and by the occurrence of events,” Minister Nandlall explained after the hearing.
Forde conceded that the Orders sought to prevent the presentation of the budgets before the National Assembly and to prohibit the Speaker from considering the estimates, however, he insisted that two of the orders are still open to litigation.
By the remaining two exceptional Orders, he was seeking to prevent the Minister with responsibility for Finance from disbursing any expenditure or any appropriated expenditure approved by the National Assembly in respect of the Constitutional Agencies listed in the Third Schedule to the Constitution, and in the Schedule to the Fiscal Management and Accountability Act.
“I submitted to the court that an Appropriation Act is an instrument which is authorised by Article 218 of the Constitution, upon the national estimates and expenditure being approved by the National Assembly, and once that Appropriation Bill is passed by the National Assembly and it is assented to by the President and published in the Gazette it becomes law,” Nandlall said.
“So what this judge is being asked to do is essentially being asked to stop a law passed by the legislature from taking effect; because once the Appropriation Act is Assented to and Gazetted it becomes law, the Minister of Finance therefore becomes compelled to make disbursements under the Appropriation Act,” he added.
Nandlall further argued that if the Orders sought by Forde were granted, the constitutional agencies listed as Defendants, including the Supreme Court of Guyana, would be deprived of their allocations, thereby threatening their ability to offer the various essential public services they provide to the Guyanese people
The Attorney-General contended that the applicants have failed to demonstrate that their Fixed Date Application would be prejudiced by allowing the defendant agencies to receive their allocations.
“Mr. Forde is not arguing that they are not entitled to these sums, all he is questioning is the procedure by which they should get these budgetary monies; he believes that the procedure is wrong, the law will never put a hold to such substantive activities on the basis on the procedural violation complaint,” Nandlall said in his briefing.
“I go back to the Appropriation Act, it is a law, it mandates the disbursal of monies in accordance with that act and a court can’t put the law on hold, it can later declare the law to be invalid or unconstitutional after hearing all those arguments,” he added.
Justice Harnanan, in his decision, accepted that the issues raised by the Applicants introduced constitutional matters of importance. He ruled that some of the Orders sought were overtaken by events, and therefore spent.
Pertaining to the remaining two exceptional Orders being sought by the Applicants, the Judge ruled that the Applicants had not demonstrated why it is just and convenient that the Orders should be granted, or how the public interest is negatively affected by the disbursement of funds to the Constitutional Agencies, and how the refusal of the conservatory orders would render the Fixed Date Application nugatory.
Consequently, Justice Harnanan refused to grant the conservatory orders being sought, and awarded costs in favour of the Attorney-General in the sum of $200,000, to be paid by the Applicants on or before the hearing of the substantive Fixed Date Application on March 15, 2021.
The other applicants in the matter are Dawn Gardner, Chairman of the Public Service Commission; Michael Somersall; Member of the Police Service Commission, Clinton Conway; and Chairman of the Teaching Service Commission, Allan Munroe.
The Attorney-General noted that among the applicants are constitutional agencies which are supposed to be independent and impartial of any political interference, namely, the Public Service Commission, the Police Service Commission and the Teaching Service Commission.
“They have all joined with political operatives in the Opposition, Ganesh Mahipaul and Coretta McDonald and this whole army of politicians who are lawyers; so you have constitutional agencies now becoming politicians,” he said.