MP asks court to declare amendment to Fiscal Management and Accountability Act unlawful

Feb 24, 2021 News

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– says constitutional agencies should be free from any control of the executive

Kaieteur News – Opposition Member of Parliament (MP) Ganesh Mahipaul has joined several other persons to challenge the government on its decision to amend the Fiscal Management and Accountability Act (FMAA).
In court documents which were drafted by attorney, Roysdale Forde, Mahipaul contends that the move is unconstitutional in that the government is seeking to exercise a certain level of control over the constitutional agencies which are supposed to free from any control of the executive.
As such, the Opposition MP is seeking several declarations from the Supreme Court of Judicature. Among them, is a declaration that the constitutional agencies are entitled to operate and function free of the exercise of any control by the Executive and of any other any entity by virtue of Article 122 of the Constitution of the Cooperative Republic of Guyana.
Mahipaul listed the Judicial Service Commission, the Public Service Commission, Teaching Service Commission, Public Service Appellate Tribunal, Public Procurement Commission, Guyana Elections Commission, Office of the Ombudsman, Ethnic Relations Commission, Human Rights Commission, Women and Gender Equality Commission, Indigenous Peoples Commission, Rights of the Child Commission, Chambers of the Director of Public Prosecution, Office of the Auditor General, the Supreme Court of Judicature and Parliament Office among the constitutional agencies that would be affected by the amendments.
He is therefore seeking a declaration that the inclusion of the constitutional agencies as budget Agencies 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.
Further, Mahipaul seeks a declaration that the power and exercise of budgetary and fiscal control over Budget Agencies under the Fiscal Management and Accountability Act Cap. 73:02 by Ministers of the Government and the Minister of Finance in particular, being members of the Executive, is inconsistent with and contrary to the scheme and provisions of the Constitution of the Cooperative Republic of Guyana which provide for the independence, impartiality and financial autonomy of the constitutional agencies.
He contends too that as a consequence of the Fiscal Management and Accountability (Amendment) Act 2021, which vests power and control in the Ministers of the Government of Guyana in general, and in particular, the Minister of Finance under Section 14 of the Fiscal Management and Accountability Act Cap. 73:02 to approve the budget submissions and or proposals of the Constitutional Agencies is unconstitutional, null, and void and of no legal effect, inconsistent with and in conflict with Articles 122A, 212(G) and 222A of the Constitution of Guyana which vests such power to approve.
According to Mahipaul, the expenditure of each of the constitutional agencies ought to be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention and is disbursable out of the said fund without an Appropriation Act.
He noted that such expenditure cannot therefore form part of the estimates to be included in any Appropriation Bill and or Act, as it would be unconstitutional.
Among the other declarations that Mahipaul seeks is a conservatory order directed to the Minister of Finance and or the Senior Minister in the Office of the President, prohibiting them, from tabling and or presenting to the National Assembly for the consideration and or approval by the said National Assembly any budget Submissions and/or Proposals of the Constitutional Agencies in accordance with Section 14 of the Fiscal Management and Accountability Act Cap 73:02 for the Fiscal Year 2021 until the hearing and determination of the court case.
He has asked a conservatory order directed to the Minister prohibiting the Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance in the Government from tabling and or presenting to the National Assembly any Appropriation Bill containing and or including any expenditure of or purported Appropriations in respect of any of the constitutional agencies as well as a conservatory order prohibiting the said Minister of Finance and or the Senior Minister, his servants, agents, subordinates or whomsoever from disbursing any expenditure or any appropriated expenditure approved or purportedly approved by the National Assembly in respect of the Constitutional Agencies until the court matter is heard and determined.
In a document to support his application, Mahipaul explained that the National Assembly passed the Fiscal Management and Accountability (Amendment) Act which was assented to by former President David Granger on August 5, 2015, which outlined a procedure for the request of constitutional agencies for funding, to be considered directly by and only by the National Assembly instead of the Executive micro-managing the activities of those agencies.
According to the applicant, the FMAA established for the first time, a legislative foundation for the independence of the constitutional agencies of Guyana and give them complete control of their finances.
He said that the National Assembly then passed Constitutional Amendment Act, No. 1 of 2016, which was assented to by Granger on the January 11, 2016, in which the Parliament Office was added as an entity listed among the constitutional agencies.
Mahipaul noted however that the National Assembly recently passed the Fiscal Management and Accountability Amendment Bill of 2021 assented to on February 9, repealed Section 80B (1) to (4) of the FMAA which were amended by the Fiscal Management and Accountability (Amendment) Act of 2015.

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