High Court rules that Constitutional agencies’ budgets must go to Finance Minister

Last Updated on Monday, 11 October 2021, 22:14 by Denis Chabrol

The High Court on Monday ruled that the budgets of all constitutional agencies must be sent to the Finance Minister to determine if the National Treasury can afford the amounts requested because sending them directly to the National Assembly violates the constitutional role of the Executive.

“In keeping with the independence of these agencies, the Court ruled that the budgetary proposals must be sent directly to the Minister of Finance where they are to be examined and approved by the Minister based upon the State’s affordability. Here, the Judge recommended discussions and dialogue,” Attorney General Anil Nandlall said in his account of the decision by Justice Nareshwar Harnanan.

Mr. Nandlall said the High Court further ruled that the Budget of these agencies not be included in the Appropriation Act as they constitute a direct charge upon the Consolidation Fund.

For his part, Attorney-at-Law Roysdale Forde  said the court found that the “insertion of constitutional agencies as budget agencies were found by the Court to be unconstitutional” and the court ruled that constitutional agencies could not be subjected to a process which rendered them as part of the Executive.

The case had been brought by Ganesh Mahipaul, Coretta McDonald, General Secretary Of The Guyana Teachers Union, Dawn Gardner, First Vice President Of The Guyana Public Service Union as well as 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.

They instituted legal proceedings in the High Court against The Attorney General, Dr. Ashni Singh, The Minister Of Finance and or The Senior Minister Within The Office Of The President, 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 Human Rights Commission, the Women & Gender Equality Commission, the Indigenous Peoples Commission, the Rights Of The Child Commission, the Chambers Of The Director Of Public Prosecutions, the Office Of The Auditor General, Supreme Court Of Judicature, Parliament Office, the Speaker Of The National Assembly, and The Clerk Of The National Assembly.

The Attorney General said Justice Harnanan agreed with him that it is the role and function of the executive in the form of the Minister of Finance or any other Minister designated by the President whose function is to prepare and lay before the National Assembly the estimates of revenues and expenditure as provided for in Article 218 of the Constitution.

He said the Judge also upheld his contention that the amendments to the Fiscal Management and Accountability (Amendment) Act that were enacted in 2015 by the APNU/AFC Coalition Government and which reposed a power in the various constitutional agencies to present to the Clerk of the National assembly the budgetary proposal for their individual budget agencies, and, in the case of the Auditor General, the Chairman of the Public Accounts Committee, to present the Auditor General’s Budget to the National Assembly, “were manifestly in conflict with the clear and express language of Article 218 of the Constitution, and therefore, null void and of no effect.”

According to Mr Nandlall, the judge also ruled that those provisions of the 2015 amendment abrogated the doctrine of separation of powers in that it took from the Executive constitutionally prescribed functions and gave it to the Constitutional agencies.

Concerning the Fiscal Management and Accountability (Amendment) Act 2021, the Attorney General said the Judge found that the amendments did not in any way conflict with the Constitution, as argued by Attorney-at-Law Roysdale Forde , save and except the Schedule inserted by Section 7 of the Act which lists the Constitutional Agencies as a Schedule to the Fiscal Management and Accountability (Amendment) Act treating them as budgetary agencies. The amendments passed in 2021 were intended to reverse the unconstitutional amendments enacted in 2015.

The Attorney General said the Court declared that there was absolutely no evidence of intrusion by the Executive into the realm of the Constitutional Agencies by virtue of sections 1-6 of the Fiscal Management and Accountability (Amendment) Act, 2021 and that those changes in the law were inspired by good intentions.

Under the coalition after the proposed expenditures by those constitutional agencies had been laid in the National Assembly, the Finance Minister had cut most of them.