MP asks the court to declare an amendment to the Financial Management and Accountability Act unlawful
– states that constitutional agencies should be free from any control of the executive
Opposition MP: Ganesh Mahipaul.
Kaieteur News – Opposition Member of Parliament (MP) Ganesh Mahipaul has joined several others to challenge the government on its decision to amend the Fiscal Management and Accountability Act (FMAA).
In court documents drafted by attorney Roysdale Forde, Mahipaul argues that the move is unconstitutional in that the government seeks to exercise a certain level of control over the constitutional agencies that are supposed to free from any control of the executive.
As such, the Opposition MP is seeking several statements from the Supreme Judiciary Court. Among them, there is a statement that the constitutional agencies are entitled to act and act free from the exercise of any control by the Executive and any other entity by virtue of Article 122 of the Constitution of the Cooperative Republic of Guyana.
Mahipaul listed the Judicial Service Commission, the Public Services Commission, the Teaching Service Commission, the Public Service Appeals Tribunal, the Public Procurement Commission, the Guyana Elections Commission, the Office of the Ombudsman, the Ethnic Relations Commission, the Human Rights Commission, the Equality Commission and Gender, Indigenous Peoples. Commission, the Children’s Rights Commission, the Chambers of the Director of Public Prosecutions, the Office of the Auditor General, the Supreme Court of Judiciary and the Office of Parliament are among the constitutional agencies affected by the reforms.
It therefore seeks a statement that the inclusion of the constitutional agencies as budget Agencies under the Financial Management and Accountability Act Cap 73:02 is inconsistent with the independence guaranteed to those constitutional agencies in the Constitution of the Cooperative Republic of Guyana.
Further, Mahipaul seeks a statement that the power and exercise of budgetary and fiscal control over Budget Agencies under the Financial Management and Accountability Cap Act. 73:02 by Government Ministers and the Minister of Finance in particular, as they are members of the Executive, is inconsistent with and contrary to the design and provisions of the Constitution of the Cooperative Republic of Guyana which provides for independence, impartiality and financial autonomy of the constitutional agencies.
He also argues that as a result of the Financial Management and Accountability (Amendment) Act 2021, which vests power and control in the Ministers of the Government of Guyana generally, and in particular, the Minister of Finance under Section 14 of the Financial Management and Act Liability Cap. 73:02 to approve the Constitutional Agencies budget submissions and / or proposals is unconstitutional, void and void and of no legal effect, inconsistent with Articles 122A, 212 (G) and 222A of the Guyana Constitution and conflict with them. such power of approval.
According to Mahipaul, the expenditure of each of the constitutional agencies should be funded as a direct charge on the Consolidated Fund, which is set as a lump sum by annual subsidy and which can be paid out of that fund without an Appropriation Act.
He noted that such expenditure cannot therefore form part of the estimates to be included in any Appropriation Bill and or Act, as it would be unconstitutional.
Other statements Mahipaul is seeking include a conservatory order addressed to the Minister of Finance and / or the Senior Minister in the Presiding Office, which prohibits them from presenting and or presenting to the National Assembly to considered and or approved by the said National Assembly any budget submissions and / or Proposals of the Constitutional Agencies in accordance with Section 14 of the Financial Management and Accountability Act Cap 73:02 for the Financial Year 2021 until the hearing and determination of the court case.
He has requested a conservatory order referred to the Minister prohibiting the Minister for Finance and / or the Senior Minister in the Presiding Office, or another such Minister who has given responsibility for Government Finance from introducing and or submit to the National Assembly any Reservation. A Bill containing and including any alleged expenditure or Reservations in relation to any of the constitutional agencies as well as a conservatory order prohibiting the said Minister of Finance and / or the Senior Minister, his servants, agents, subordinate employees or whoever shall incur any expenditure or attributable expenditure claimed or approved by the National Assembly in respect of the Constitutional Agencies until the court matter is heard and decided.
In a document in support of his application, Mahipaul explained that the National Assembly passed the Fiscal Management and Accountability (Amendment) Act agreed by former President David Granger on August 5, 2015, which outlined a procedure for a constitutional agency request on for funding, for direct consideration by the National Assembly and only for the Executive to micro-manage the activities of those agencies.
According to the applicant, the FMAA established for the first time, a legislative basis for the independence of Guyana’s constitutional agencies and to give them complete control over their finances.
He said the National Assembly then passed the Constitutional Reform Act, No. 1 of 2016, which was agreed to by Granger on January 11, 2016, where the Office of Parliament was added as a listed entity among the constitutional agencies.
However, Mahipaul noted that the National Assembly passed the Financial Management and Accountability Reform Bill 2021 which was agreed on February 9, repealing Section 80B (1) to (4) of the FMAA as amended by the Financial Management and Accountability Act ( Amendment). from 2015.