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…politicians, trade unionists, civil society reps tell High Court over decision to amend FMAA
By Svetlana Marshall
Maintaining that the passage of the Fiscal Management and Accountability (Amendment) Act of 2021 has impaired the financial independence and autonomy of the Constitutional Agencies, listed in the Third Schedule to the Constitution, a group of politicians, trade unionists and civil society representatives, have told the High Court that the independence of the constitutional agencies are protected by Article 222A, 212 (G) and 122 (A), however, that protection has been breached.
Article 222A, in particular, states: “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 on the Consolidated Fund, determined as a lump sum by way of an annual subvention approved by the National Assembly after a review and approval of the entity’s annual budget as a part of the process of the determination of the national budget.”
Further, it states that each constitutional agency must manage its subvention as it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices and procedures approved by the National Assembly to ensure accountability.
Through their battery of lawyers led by Senior Counsel Roysdale Forde, the group of applicants, explained that the Fiscal Management and Accountability (Amendment) Act mandates the constitutional agencies to submit their budget proposals to a Minister of Government for approval then to the Minister of Finance for inclusion in the National Budget but such a method is unconstitutional, null and voice.
The battery of lawyers – which also includes Attorneys-at-Law Khemraj Ramjattan, Mayo Robertson, Raphael Trotman, Geeta Chandan-Edmond and Amanza Walton-Desir – the new process under the amended legislation is also in contravention of Article 217 of the Constitution.
“The Amendments are consequently unconstitutional, null, void and of no legal effect as they impermissibly permit and empower the Executive, through the Ministers of Government and the Minister of Finance to exercise control over the affairs, business and work of the Constitutional Agencies listed in the Third Schedule to the Constitutions,” Senior Counsel Forde and team told the High Court.
It was further submitted that the new regime created by the amended legislation is violates Articles 122(A), 187(4), 192(4), 212(G), 215A, 223(4) and 226 of the Constitution as well as the doctrine of the Separation of Powers.
It was noted that while the Fiscal Management and Accountability Act was enacted in 2003, mandating Budget Agencies including Constitutional Agencies to make Budget Submissions and Proposals in accordance with Section 14 to Ministers of Government, the National Assembly passed a Constitutional Amendment Act in 2015 to amend the Third Schedule to the Constitution by the inclusion of Constitutional Agencies listed as Budget Agencies in the Schedule to the Fiscal Management and Accountability Act.
“The Mover of the Fiscal Management and Accountability (Amendment) Bill of 2015, said, the passage of the Bill: ‘…and its eventual passage into law will mark the culmination of a long tumultuous journey to free the constitutional commissions and other agencies from administrative structures and controls of their finances,” the lawyers recalled.
In support of their arguments, the battery of lawyers pointed to the Explanatory Memorandum to the Fiscal Management and Accountability (Amendment) Bill of 2015. That explanatory noted stated that: ““This Bill seeks to amend the Fiscal Management and Accountability Act, Cap. 73:02, (i) to extend the application of the act to the responsible Minister and (ii) to establish financial independence of certain constitutional entities, including Service Commissions principally, to specifically allow for lump sum payments to be made to these Agencies and to free them from the automatic obligations of Budgetary Agencies and the discretionary powers exercised by the Minister of Finance over Budgetary Agencies, which obligations compromise their independence which they are intended to have as contemplated by the Constitution.”
It was submitted that the Fiscal Management and Accountability (Amendment) Act of 2021 repealed Section 80B (1) to (4) of the Fiscal Management and Accountability Act Cap. 73:02 which were amended by the Fiscal Management and Accountability (Amendment) Act of 2015.
In support of their arguments, they also referenced to the case of Attorney General v Sumair Bansraj; Judicial Service Commission v. Speaker of the National Assembly and another; Gatirau Peter Munya v. Dickson Mwenda Kithinji and 2 others and David Granger v. Dr. Ashni Singh and the Attorney General, in which the issue of Conservatory Orders were addressed.
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.
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.
