Let the courts decide

Jun 25, 2014 Features / Columnists, Peeping Tom

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Parliamentary authorization is not needed to make advances from the Contingencies Fund. The Minister of Finance and the Minister alone is empowered by the Constitution and by the Fiscal Management and Accountability Act to authorize disbursements in the form of advances from the Contingencies Fund.
The Contingencies Fund is a sub-fund of the Consolidated Fund. Approval is needed from the National Assembly for the replenishment of the Contingencies Fund, not for the spending of the advances.
The Contingencies Fund is replenished through the laying and approval of a Supplementary Bill. If no such approval is had, then the Contingencies Fund cannot be replenished and the spending cannot be deemed to have been used for the appropriation. But neither does this non-approval de-legitimize the advances.
The National Assembly may within its right, refuse to replenish the Contingencies’ Fund. It may refuse to do so because the members may be aggrieved as to the uses to which the monies were put.
But this does not de-legitimize the authorization by the Minister of Finance to make advances from this fund. It is the Minister of Finance and the Minister of Finance alone who can authorize the use of these funds.
It is also the Minister to be satisfied that an urgent, unforeseen need exists to meet the expenditure for which no other provision exists. It is not for the National Assembly to be satisfied. It is for them to either approve or disapprove of the Supplementary Bill seeking replenishment of the Contingencies Fund.
I have dealt with this issue on so many occasions that I am being repetitive in making the aforementioned arguments. The substance of this column is however not about whether the Minister of Finance has acted improperly in relation to the Contingencies Fund. He cannot act improperly when both the Constitution and the law give him the power to make advances from the Contingencies Fund and then to lay a Supplementary Bill relating to these advances.
This column addresses two main issues. The first of these is the threat to sanction the Minister in the National Assembly. The second concerns the refusal of those who allege that the Minister has acted unlawfully to have the Court determine this question.
The Minister of Finance cannot be sanctioned by the National Assembly for any breach of the law. If the legislature attempts to do so, it would be usurping a judicial function.
This would be a naked violation of the separation of powers. There is an abundance of case law on this issue of the legislature being constrained from exercising a judicial function.
But you can bet your bottom dollar that the opposition politicians are going to move to have the Minister face the Committee of Privileges, without even establishing just what privileges were breached. That is the nature of the type of politics that is practiced today by the opposition. And it is no use losing sleep over those threats.
The second issue concerns the reluctance to have a judicial interpretation of the relevant provisions of the law and the Constitution.
When the President of Guyana refused to assent to one of the Bills that the opposition had tabled and passed in the National Assembly, he explained that the Bill contained provisions that were unconstitutional.
The response by the opposition was that it is for the President to determine the constitutionality or the Bill. That they say is for the courts.
Well should a sitting President, believing that a Bill is unconstitutional, bring it into being and then approach the courts to have the same Bill that he signed vitiated on the grounds that it is illegal?
The Minister of Finance is being accused of acting contrary to the law when he authorized disbursements from the Contingencies Fund. Yet the very people, who were claiming that it is not for the President to determine whether something was legal, are the same forces that are pontificating that the spending of monies from the Contingencies Fund is not consistent with the Constitution or the Fiscal Management and Accountability Act.
Well, why not test this proposition in the very arena where they claim the constitutionality and legality of Bills need to be tested? Why not test it in a Court of Law? Why not seek an interpretation from the Courts as to whether disbursements from the Contingencies Fund authorized by the Minister of Finance are constitutional and lawful?
Is this not where disputes are to be settled, particularly disputes over interpretations of the law? And there is a dispute over this spending. So why not let the Courts decide? Is this not how civilized democracies are supposed to operate?

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