Full Court upholds decision to allow scrutiny of monies requested by constitutional agencies

Sep 15, 2021 News

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Kaieteur News – The Full Court bench comprising of Justices, Brassington Reynolds and Sandil Kissoon, on Friday, upheld a decision to allow for the scrutiny of monies requested by constitutional agencies. In upholding the decision, the court dismissed a Notice of Appeal and Notice of Application filed for a number of Conservatory Orders.
The actions were filed by A Partnership for National Unity and Alliance For Change (APNU+AFC) Member of Parliament (MP), Ganesh Mahipaul, Coretta McDonald, General Secretary of the Guyana Teachers Union, Dawn Gardner, First Vice President of the Guyana Public Service Union, Michael Somersall, Chairman of the Public Service Commission, Clinton Conway, Member of The Police Service Commission, and Allan Munroe, Chairman of The Teaching Service Commission.

Mahipaul had joined the other persons to ask the Court to preserve the changes made to the Fiscal Management and Accountability Amendment Act (FMAA) under former President, David Granger.
Granger had assented to FMAA Bill to allow the request of constitutional agencies for funding, to be considered directly by and only by the National Assembly without executive micro-management or scrutiny.
In his application, Mahipaul had asked the court to put a hold on the National Assembly recently passed Fiscal Management and Accountability Amendment Bill of 2021, which under the People’s Progressive Party/Civic (PPP/C) Government was once again opening the constitutional agencies to scrutiny of the funds requested.
Justice Nareshwar Harnanan had previously rendered a decision in the High Court to allow the government to scrutinise the funds requested by the agencies. The proceedings determined before the Full Court on Friday flowed directly from the decision of Justice Harnanan refusing to grant certain reliefs to Mahipaul and others.
According to information issued by the Office of the Attorney General, Anil Nandlall SC, having heard the Attorneys-at-Law for the parties, Justices Reynolds and Kissoon ordered and directed that the Notice of Appeal and Notice of Application by Mahipaul and others be dismissed.
The Judges also ordered costs against the Applicants/Appellants to be paid to the Attorney General, the Minister of Finance, the Judicial Service Commission and the Speaker and Clerk of the National Assembly in the sum of fifty thousand dollars ($50,000) each.
In March, Mahipaul’s Notice of Application was filed in an effort to maintain the status quo of the budgetary allocation until the contentions in the application were heard and a decision rendered.
In his application, Mahipaul had contended that the move to amend the FMAA 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.
He claimed that the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission, the Public Service Appellate Tribunal, the Public Procurement Commission, the Guyana Elections Commission, the Office of the Ombudsman, the Ethnic Relations Commission, the Supreme Court of Judicature and the Parliament Office were among the constitutional entities that would be affected by the amendments.
He, therefore, sought 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 the constitutional agencies in the Constitution of the Co-operative Republic of Guyana.
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.
In a document to support his application, Mahipaul had 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, which repealed Section 80B (1) to (4) of the FMAA, which were previously amended in 2015.

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