THE GOVERNMENT SHOULD CORRECT THIS ERROR

Dec 11, 2012 Features / Columnists, Peeping Tom

The Fiscal Management and Accountability Act (FMAA) has a schedule of Budget agencies. One of those agencies happens to be the Supreme Court.
However, according to the Constitution of Guyana, the judiciary is supposed to be funded by a subvention agency and not treated as a Budget agency.
The listing of the Supreme Court as a Budget agency in the schedule of the FMAA was clearly therefore an error. That error may have been a product of the haste with which the legislation was passed in order to qualify for the substantial debt relief from the international community.
The contradiction between the FMAA and the Constitution was first borne out in a letter written in 2003 by shadow Minister of Finance for the PNCR, Mr. Winston Murray, to the then Minister of Finance, Sasenarine Kowlessar.
The PNCR walked out of the debate on the Bill after its attempt to have the legislation referred to a Select Committee was refused. The government was obviously in a hurry to receive the debt relief and used its majority to railroad the legislation through the House.
That being said, the fact that the schedule to the Act treats the Supreme Court as a Budget Agency and not a subvention -receiving institution, does not vitiate the legislation.
In fact, the schedule itself is subject to change and can be easily amended by the stroke of a pen. The subject minister can amend the Schedule of the FMAA by making the appropriate Order.
The government should do the right thing and issue the Order that would allow for the amendment to the Schedule of the FMAA so that the judiciary can receive a subvention rather than be treated as a Budget agency.
The fact that this contradiction in the schedule goes against the grain of the Constitution neither nullifies nor renders inoperable or unlawful any of the provisions of the Fiscal Management and Accountability Act.
The error should be corrected and there is no need for a mole hill to be made into a mountain on this score.
The fact that the judiciary is treated as a Budget Agency has not led to the cutoff of all funds to the judiciary. And this is the difference in the effect of the erroneous listing of the Supreme Court as a Budget Agency and the decision of the combined opposition to cut funding for a constitutional commission, the Ethnic Relations Commission in this year’s Budget.
The judiciary has not been unencumbered by being listed as a Budget agency. But the Ethnic Relations Commission was forced to shutdown its operations because of the denial of funds by the combined opposition, in what must be considered one of the most disgraceful acts in Guyana’s legislative history.
When this decision was challenged, the Court was only being asked to pronounce on the constitutionality of the cuts. The Courts can only adjudicate on what is before it and since there was no challenge to the constitutionality of the schedule of the FMAA, it is misconstrued to argue that the court ought to have recognized the contradiction between the FMAA and the Constitution.
The FMAA was not being challenged. What was being challenged was the decision of the combined opposition to cut funding for the Ethnic Relations Commission.
The opposition never brought an action before the Courts challenging the decision of the government to list the Supreme Court in the FMAA as a Budget Agency.
In fact, this very opposition passed the appropriation for the judiciary in this year’s Budget. Did they not see the contradiction in so doing?
If the government fails to amend the error in the FMAA and to treat the judiciary as a subvention agency, the opposition should challenge this in court.
But such a course of action can be avoided if the government does the right thing and issues an Order correcting the mistake, and ensuring that in next year’s Budget the judiciary is given a subvention.

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