Mar 07, 2021 News
Kaieteur News – Justice, Nareshwar Harnanan, on Friday refused to grant 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, from disbursing funds to several constitutional agencies, in keeping with estimates in the Appropriation Act 2021 (Act 5 of 2021).
The effect of the ruling is that Minister Singh is legally free to disburse funds to these agencies in keeping with the Appropriation Act 2021 (Act 5 of 2021).
Additionally, owing to various reasons, including the contention by Attorney General Nandlall that the Notice of Application should have never been brought, Justice Harnanan granted costs in favour 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 Application (the substantive action), Opposition Member of Parliament (MP), Ganesh Mahipaul, joined several other persons to challenge the constitutionality of the amendments to the Fiscal Management and Accountability Act.
The Notice of Application was filed in an effort to maintain the status quo of the budgetary allocation until the contentions in the Fixed Date Application are heard, and a decision rendered.
In his application, Mahipaul had contended that the move to amend the FMAA is unconstitutional in that the government is seeking to exercise a certain level of control over the constitutional agencies, which are supposed to free from any control of the executive.
He claimed that Judicial Service Commission, the Public Service Commission, Teaching Service Commission, Public Service Appellate Tribunal, Public Procurement Commission, Guyana Elections Commission, Office of the Ombudsman, Ethnic Relations Commission, the Supreme Court of Judicature and Parliament O
ffice among the constitutional entities that would be affected by the amendments.
He was therefore seeking a declaration that the inclusion of the constitutional agencies as budget Agencies under the Fiscal Management and Accountability Act Cap 73:02 is inconsistent with the independence assured to those constitutional agencies in the Constitution of the Co-operative Republic of Guyana.
According to Mahipaul, the expenditure of each of the constitutional agencies ought to be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention and is disbursable out of the said 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 to support his application, Mahipaul had explained that the National Assembly passed the Fiscal Management and Accountability (Amendment) Act, which was assented to by former President, David Granger, on August 5, 2015, which outlined a procedure for the request of constitutional agencies for funding, to be considered directly by and only by the National Assembly instead of the Executive micro-managing the activities of those agencies.
According to the applicant, the FMAA established for the first time, a legislative foundation for the independence of the constitutional agencies of Guyana and give them complete control of their finances.
He said that the National Assembly then passed Constitutional Amendment Act, No. 1 of 2016, which was assented to by Granger on the January 11, 2016, in which the Parliament Office was added as an entity listed among the constitutional agencies.
Mahipaul noted however that the National Assembly recently passed the Fiscal Management and Accountability Amendment Bill of 2021 assented to on February 9, repealed Section 80B (1) to (4) of the FMAA which were amended by the Fiscal Management and Accountability (Amendment) Act of 2015.
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