Feb 13, 2018 News
By Abena Rockcliffe-Campbell
Further litigation to force the transfer of the US$18M signing bonus into the consolidated fund has been brought against the APNU+AFC Government. An application to this effect has been filed in the name of Former Attorney General, Anil Nandlall.
The proceedings were filed yesterday and are fixed for hearing before the Chief Justice on the 13th of March.
The court document seen by Kaieteur News notes that Nandlall is seeking a declaration from the court that the deposit of US$18M received from ExxonMobil as a Signature Bonus, pursuant to Clause 33 of the Petroleum Sharing Agreement into an account within the Bank of Guyana, designated in writing by the Minister of Finance and not in the Consolidated Fund, is contrary to and in violation of the spirit of Article 216 of the Constitution of the Cooperative Republic of Guyana and Section 38 (i) of the Fiscal Management and Accountability Act, Chapter 73:02, Laws of Guyana and is accordingly, unconstitutional, unlawful and illegal.
Nandlall also wants an order directing the Minister of Finance to “forthwith” transfer and deposit into the Consolidated Fund, the said US$18M
The grounds of the application are that Nandlall is the former Attorney General and Minister of Legal Affairs and that he is a Member of Parliament. It was noted that Nandlall’s parliamentary duties include “the scrutiny of actions and omissions of the Executive Government with a view to ensure that there is compliance with the Constitution and the laws of Guyana.
The court document stated that Article 216 of the Constitution provides “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”. And, Section 38 of the Fiscal Management and Accountability Act, Chapter 73:02, provides, “All public moneys raised or received by the Government shall be credited fully and promptly to the Consolidated Fund, except—moneys credited to an Extra budgetary Fund as stipulated in the enabling legislation establishing that fund; moneys credited to a Deposit Fund.”
Nandlall said that the US$18M fall within the category of “revenues or other monies” contemplated by Article 216 of the Constitution as well as “all public moneys” contemplated by Section 38 (1) of the Fiscal Management and Accountability Act, Chapter 73:02, and accordingly, must be credited fully and promptly pay into and form one Consolidated Fund.
Yesterday, Nandlall told Kaieteur News that he thinks his application was necessary.
He acknowledged that there were previous efforts of a similar nature made by Transparency Initiative Guyana Inc. (TIGI).
Nandlall said, “My understanding, based on reports in the press, is that the learned Chief Justice felt that the proceedings filed were procedurally wrong and they were either dismissed or withdrawn.”
When TIGI withdrew its case, it promised to re-file. Nandlall said that TIGI can also go ahead with its application, as the law does not prohibit multiple challenges on the same illegality.
“For convenience, the court may wish to hear them together.”
Nandlall also said that TIGI is free to intervene as an interested party and join the cause.
“I would welcome such an intervention, not only by TIGI, but any organization whose interest coincides with ours.”
Nandlall said that the government has had every opportunity to do the “correct thing which is to deposit the money into the consolidated fund as the Constitution and Fiscal Management and Accountability Act mandate. But the government refuses to do so. So these proceedings are intended to compel them to comply with the law and the Constitution.”
The lawyers stressed that the government violated the constitution, and such violation should not be tolerated by any society “especially by those who, while in opposition, every day use to complain about unconstitutionality. The difference between now and then, is that we are challenging the unconstitutionality in the court. They used to speak about it in the press only, they never once filed any legal proceeding against any of the things they complained about. We challenge what we complain about.”
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