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– Trade unionists, constitutional commission representatives seeking conservatory order from High Court to block approval of funds
A team of politicians, trade unionists and constitutional commission representatives has taken the People’s Progressive Party/Civic (PPP/C) Government to Court over its decision to lump budgetary funding for constitutional agencies in the National Budget, thereby threating their independence.
Pending the hearing and determination of their Fixed Date Application (FDA), the applicants have asked the High Court for a Conservatory Order, prohibiting the Senior Minister within the Office of the President with responsibility for Finance, Dr. Ashni Singh from presenting to the National Assembly for approval, budget submissions for constitutional agencies, listed in the Third Schedule of the Constitution.
The Fixed Date Application was filed by A Partnership for National Unity + Alliance For Change (APNU+AFC) Member of Parliament, Ganesh Mahipaul; General Secretary of the Guyana Teachers’ Union, Coretta McDonald, MP; First Vice President of the Guyana Public Service Union, Dawn Gardener; Chairman of the Public Service Commission, Michael Somersall; Member of the Police Service Commission, Clinton Conway; and Chairman of the Teaching Service Commission, Allan Munroe.
The respondents in the matter are: Attorney General, Anil Nandlall; Minister of Finance, Dr. Ashni Singh; the Judicial Service Commission; the Public Service Commission; Teaching Service Commission; the Public Service Appellate Tribunal, the Public Procurement Commission, the Guyana Elections Commission, the Office of the Ombudsman and the Ethnic Relations Commission among other constitutional agencies. Through a battery of lawyers led by Senior Counsel Roysdale Forde, the applicants are seeking a total of 24 declarations, orders and conservatory orders intended to preserve the independence of constitutional agencies by having their budgetary funding, separate and apart from the National Budget.
The move comes less than three weeks after, the PPP/C Government used its one seat majority in the House to undo changes to the Fiscal Management and Accountability (Amendment) Act. The Fiscal Management and Accountability (Amendment) (FMAA) Bill of 2021, which was tabled by Dr Singh, has resulted in Section 80B of the Principal Act, among other things, being amended by the removal of subsections (1) to (4).
Effectively, the amendment has resulted in budgetary proposals for Constitutional Agencies being included in the National Budget as was done pre-2015, as against it being presented in advance.
Now, the applicants want the High Court to rule that the Fiscal Management and Accountability (Amendment) Act of 2021 is unconstitutional, null, void and of no legal effect.
The team is seeking a declaration that the Supreme Court of Judicature is entitled to operate and function free of the exercise of any control by the Executive, and of any other entity by virtue of Article 122 of the Constitution. Further, it is seeking a declaration that constitutional agencies listed in the Third Schedule of the Constitution, are to function independently, impartially and free of the exercise of any control by the Executive or any other entity.
The applicants are also seeking: “A Declaration that the inclusion of the Constitutional Agencies listed in the Third Schedule…as Budget Agencies in the Schedule to and 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 Cooperative Republic of Guyana.”
They also want the court to declare that the power and exercise of budgetary and fiscal control over Budget Agencies under the Fiscal Management and Accountability by Government Ministers is inconsistent with Constitution.
Further, they have asked the High Court to declare that due to the passage of the Fiscal Management and Accountability (Amendment) Act 2021, the power and control vested in the Ministers of the Government under Section 14 of the Fiscal Management and Accountability Act to approve the Budget Submissions and or proposals of the Constitutional Agencies is unconstitutional, null, void and of no legal effect.
“A Declaration that the inclusion of the Constitutional Agencies listed in the Third Schedule of the Constitution of the Cooperative Republic of Guyana as Budget Agencies in the Schedule to the Fiscal Management and Accountability Act Cap. 73:02 render the said Constitutional Agencies subject to treatment as Budget Agencies under the provisions of the aforesaid Act, such treatment being wholly inconsistent with the independence and financial autonomy contemplated and provided for in Article 222A in particular and the provisions of the Constitution of the Cooperative Republic of Guyana in general,” another prayer read.
In defense of the application, the battery of lawyers referenced to Article 222A of the Constitution, which states that: “In order to assure the independence of the entities listed in the Third Schedule – (a) the expenditure of each of the entities shall be financed as direct charge of the Consolidated Fund, determined as a lump sum by way of an annual subvention approved by the National Assembly…” They submitted that lumping of constitutional agencies with constitutional agencies is unlawful.