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….sets March 31 for hearing of interlocutory application for conservatory orders
The Full Court has suspended an order for costs issued by Justice Nareshwar Harnanan in the preliminary case – Ganesh Mahipaul etal v the Attorney General et el – challenging the recent passage of the Fiscal Management and Accountability (Amendment) Act of 2021, and has set March 31, 2021 for the hearing of an interlocutory application for conservatory orders.
On March 5, 2021, Justice Harnanan had declined to issue the interim orders sought by the applicants, who are a group of politicians, trade unionists and civil society representatives, and had ordered them to pay cost to the tune of $200,000 to the Attorney General Anil Nandlall.
However, the applicants, through their battery of lawyers led by Senior Counsel Roysdale Forde and Attorney-at-Law Khemraj Ramjattan, filed a Notice of Appeal and a Notice of Application to the Full Court, challenging Justice Harnanan’s decision.
When the matter came up on Friday, March 12, 2021, the Full Court of the High Court, comprising Justices Franklyn Holder and Sandil Kissoon, suspended the order for costs, and set March 31, 2021 for the hearing of the interlocutory application for Conservatory Orders pending the hearing and determination of the substantive matter.
Among the key conservatory orders being sought is an order restraining the Minister of Finance and or the Senior Minister in the Office of the President from disbursing moneys pursuant to the Appropriation Act of 2021 in respect of any expenditure or any appropriated expenditure approved or purportedly approved by the National Assembly in respect of the Constitutional Agencies listed in the Third Schedule of the Constitution.
The battery of lawyers have argued 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 of the Constitution, though the independence of those agencies are protected by Article 222A, 212 (G) and 122 (A).
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.
Under the Fiscal Management and Accountability (Amendment) Act, constitutional agencies are mandated 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 void, Forde and Team have argued.
Meanwhile, in the case of the Fixed Date Application – the substantive matter – the case will come up on Monday, March 15, 2021 in the High Court, however, the Attorney General has reportedly failed to file his defence. Instead, he has applied for an extension of time of 14 days to do so, on the grounds that individuals critical to his defence, such as the Senior Minister in the Office of the President with responsibility for Finance, Dr. Ashni Singh, had been occupied with parliamentary affairs.
But in an interview with Village Voice News on Saturday, Senior Counsel Roysdale Forde rubbished the excuse proffered by the Attorney General. It was pointed out that the FDA was filed on February 22, 2021, and served on February 26, 2021. The matter was fixed for March 15, 2017. “That’s 17 days to prepare. Parliament finished on March 4,” the Senior Counsel posited.
Forde contended that the delay in submission on the part of the Attorney General is part of a plot to concretize Government’s control over constitutional agencies.
“The application for an extension of time is part of a scheme in to consolidate control over the Constitutional Agencies and to render the Court proceedings challenging the constitutionality of the Fiscal Management and Accountability Act, and the Appropriation Act nugatory, essentially seeking to make the unlawful reductions of Expenditure of the Constitutional Agencies and the unlawful disbursements of Expenditure by this fraudulent Government a fiat accompli. They want to delay the hearing,” the Senior Counsel told Village Voice News.
In both the interim and substantive matters, representatives from the Judicial Service Commission and the Supreme Court have filed Affidavits in support of the case.
In an affidavit dated March 11, 2021, Attorney-at-Law Tiffany Hohenkirk, who is currently stationed at the Court of Appeal, and is the Secretary (ag) to the Judicial Service Commission (JSC), said the JSC is among constitutional agencies listed under the Third Schedule of the Constitution.
Hohenkirk said the independence of the JSC is guaranteed by the Constitution.
“The procedure for appropriation requires that the Minister of Finance lay before the National Assembly estimates of revenues and expenditure of Guyana, however, estimates of expenditure that are a direct charge on the Consolidated Fund are to be excluded from the appropriation approval process.
Accordingly, I am advised by Senior Counsel, Mr Stephen G.N Fraser, and verily believe that any legislative or administrative measure which impedes the funding of the Judicial Service Commission or the salaries or presiding over the Courts by way of direct charge on the Consolidated Fund would be unconstitutional.”
Attorney-at-Law Sueanna Lovell, in her affidavit to the High Court had made a similar case as an Officer of the Supreme Court Registry.
Lovell stated that the Constitution specifically provides that all Courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any person or authority, and shall be free and independent from political executive control.
“It is further provided that all courts shall be administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund,” she posited.
The Attorney General has reportedly taken umbrage at the fact that the Police Service Commission is among the applicants but Forde said such should not be the case.
“The country should be proud that the Police Service Commission and the other representatives of the Public Service Commission and the Teaching Service Commission together with Ms. Dawn Gardiner and Coretta Mc Donald representatives of the Public Service employees and the teachers. They are standing up to protect the Constitution, in defence of the Constitution whilst Nandlall and his cartel are seeking to undermine the Constitutional Agencies guaranteed and assured independence and financial autonomy enshrined in the Constitution. He is supposed to be the principal legal officer of the installed Government and rather than upjold the Constitution he swore to uphold, he continues to run around like a poodle sniffing out legitimate land transactions, pursuing vendetta and witch hunting,” Forde told Village Voice News.
