High Court invalidates 2015 FMAA amendments
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Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C.
Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C.

HIGH Court Judge, Nareshwar Harnanan on Monday agreed with the State that the amendments made by the then APNU+AFC government to the Fiscal Management and Accountability Act (FMAA) were in conflict with the Constitution.

The judge was at the time delivering his ruling in the substantive matter filed on behalf of Opposition Member of Parliament (MP) Ganesh Mahipaul, and his ‘Coalition’ colleague, Coretta McDonald, who is the General Secretary of the Guyana Teachers Union; Dawn Gardner, First Vice-President of the Guyana Public Service Union; Michael Somersall, Chairman of the Public Service Commission and several others.

Opposition Member of Parliament, Ganesh Mahipaul

“The judge also upheld the Attorney- General’s contention that the amendments to the Fiscal Management and Accountability (Amendment) Act that were enacted in 2015 by the APNU+AFC coalition government, and which reposed a power in the various constitutional agencies to present to the Clerk of the National Assembly the budgetary proposal for their individual budget agencies, and, in the case of the Auditor-General, the Chairman of the Public Accounts Committee, to present the Auditor- General’s Budget to the National Assembly, were manifestly in conflict with the clear and express language of Article 218 of the Constitution, and therefore, [is] null, void and of no effect,” a press release issued by the AG’s Chambers said.

Opposition Member of Parliament, Coretta McDonald

In addition to Minister of Legal Affairs and 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 were listed as respondents in the case, which was filed earlier in the year by Attorney-at-Law Roysdale Forde, S.C, who appeared in association with a battery of lawyers.

The release said that Justice Harnanan, in his ruling, identified two main issues for consideration. The first was whether the provisions of the Fiscal Management and Accountability (Amendment) Act of 2021 undermined the independence of the Constitutional Agencies, and whether they conflicted with the Constitution so as to render them unconstitutional and unlawful. The second was whether the 2021 budgetary process conflicted with the Constitution.

According to the release, the judge agreed with the submissions of the AG that it is the role and function of the Executive, in the form of the Minister of Finance or any other minister designated by the President, whose function is to prepare and lay before the National Assembly the estimates of revenues and expenditure as provided for in Article 218 of the Constitution.

During the hour-long hearing, the judge also ruled that those provisions of the 2015 amendment “abrogated the doctrine of separation of powers, in that it took from the Executive constitutionally prescribed functions, and gave it to the Constitutional Agencies, again, upholding the submissions on behalf of the State.”

Further, in examining the amendments made in 2021 to the said piece of legislation, that is to say, Sections 1-6, Justice Harnanan found that they did not in any way conflict with the Constitution, as argued by Forde, “save and except the Schedule inserted by Section 7 of the Act, which lists the Constitutional Agencies as a Schedule to the Fiscal Management and Accountability (Amendment) Act treating them as budgetary agencies. The amendments passed in 2021 were intended to reverse the unconstitutional amendments enacted in 2015.” Given this position, the release said, the court has now redirected the budgetary process of these Constitutional Agencies to their “proper course.”

Additionally, in keeping with the independence of these agencies, the court ruled that the budgetary proposals must be sent directly to the Minister of Finance, where they are to be examined and approved by the minister, based upon the State’s affordability. Here, the judge recommended discussions and dialogue, the release said.

The court further ruled that the Budget of these agencies not be included in the Appropriation Act, as they constitute a direct charge upon the Consolidation Fund. The court made no coercive orders against the State.

“Ultimately, the court declared that there was absolutely no evidence of intrusion by the Executive into the realm of the Constitutional Agencies, by virtue of Sections 1-6 of the Fiscal Management and Accountability (Amendment) Act, 2021, and that those changes in the law were inspired by good intentions,” the AG’s Chambers stated.

No costs were awarded, given the significant public interest nature of the action.

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.

Subsequently, in March, 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. Both applications were also dismissed.

Dissatisfied, the applicants moved to the Full Court and filed an appeal against Justice Harnanan’s judgment, and also sought similar conservatory orders.

Last month, the Full Court of the Demerara High Court threw out the appeal. The presiding judges ordered and directed that the Notice of Appeal and Notice of Application be dismissed.

The judges also ordered costs against the applicants to be paid to the Attorney-General, the Minister of Finance, the Judicial Service Commission, and the Speaker and Clerk of the National Assembly in the sum of $50,000 each.

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