The High Court rejects a request to withhold payment of budgetary funds
Opposition Member of Parliament (MP), Ganesh Mahipaul.
Kaieteur News – Justice Nareshwar Harnanan on Friday refused to give conservatory orders requested by Mr. Roysdale Forde, SC, who, on behalf of his clients, sought to restrain the Senior Minister in the Office of the President with responsibility for Finance, Dr. Ashni Singh, of paying money to several constitutional agencies, in accordance with estimates in the Reservation Act 2021 (Act 5 of 2021).
The effect of the ruling is that Minister Singh is legally free to pay money to these agencies in accordance with the Reservation Act 2021 (Act 5 of 2021).
In addition, for various reasons, including Attorney General Nandlall’s assertion that the Notice of Application should never have been stolen, Justice Harnanan issued costs in favor of the Attorney General in the amount of $ 200,000.
This ruling of Harnanan relates to a Notice of Application filed along with a Fixed Date Application, both filed on February 22, 2021.
In the Fixed Date Request (the substantive action), Opposition Member of Parliament (MP) Ganesh Mahipaul joined several other people to challenge the constitutionality of the amendments to the Financial Management and Accountability Act.
The Notice of Application was filed in an effort to maintain the status quo of the budget allocation until the arguments in the Specific Date Request are heard, and a decision has been issued.
In his application, Mahipaul had argued that the move to reform the FMAA was unconstitutional in the sense that the government sought to exercise a certain level of control over the constitutional agencies, which are supposed to free itself from any control of the executive.
He claimed that 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 Supreme Court of Judiciary and Parliament
fice among the constitutional entities that would be affected by the amendments.
It therefore sought a declaration that the inclusion of the constitutional agencies as budget Agencies under the Financial Management and Accountability Act Cap 73:02 was inconsistent with the independence guaranteed to those constitutional agencies in the Constitution of the Cooperative Republic of Guyana.
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.
In a document in support of his application, Mahipaul had 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 for the constitutional agencies’ application for funding, to be considered directly by the National Assembly and only for the Micro-management of 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 ( Reform) of 2015.