Fiscal Accountability amendments take away independence of constitutional agencies: APNU reps move to court

Two APNU/AFC Members of Parliament (MPs) have now moved to the High Court challenging the constitutionality of the Fiscal Management and Accountability (Amendment) Act (FMAA) of 2021 which was passed in the National Assembly two weeks ago.

According to Senior Minister with Responsibility for Finance, Dr Ashni Singh, the Act allows for constitutional agencies to present their budget in the National Budget. However, APNU/AFC Parliamentarians Coretta McDonald and Ganesh Mahipaul contend that the Fiscal Management and Accountability (Amendment) Act of 2021, is unconstitutional.

They reasoned that the Act establishes a system for the treatment of budget submissions or proposals for constitutional agencies which is inconsistent with the Constitution.

In court filings, they submit that under the Act, the agencies are now subject to control by the Executive arm of government which violates several constitutional provisions.

They noted that the procedures set out in the Fiscal Management and Accountability (Amendment) Act of 2015, allowed for the request for funding by the agencies to be considered directly and only by the National Assembly instead of through the subject ministry.

According to them, these amendments were put in place as there were concerns that the fiscal autonomy of the constitutional agencies might be abused, in that they could demand any amount from the Executive without providing supporting arguments.

They argue that “The 2015 amendments outlined a procedure for the constitutional agencies’ requests for funding to be considered directly by and only by the National Assembly instead of the Executive micro-managing the activities of the constitutional agencies.”

Against this backdrop, they advance that the process set out in the Fiscal Management and Accountability Act of 2021 has restricted the constitutional agencies ability to use funds allocated by the National Assembly in such manner as it seems fit and has restricted the use of the funds to items in the budget similar to budgets of budget agencies.

Mc Donald and Mahipaul submit that by the 2021 amendments to the FMAA, the constitutional agencies are once again regulated to mere budget agencies subject to the whims and fancies of the Executive.

It is their position that the amendments allow the subject minister and or finance ministers and members of the House to limit the size of allocation as well as items of the budgets of the agencies which will therefore affect their work.

In light of the foregoing, McDonald and Mahipaul is seeking a declaration that the Fiscal Management and Accountability (Amendment) Act of 2021 is wholly unconstitutional, null, and void as they seek to impermissibly imprison the constitutional agencies to the Executive, demolish and offend the financial independence of constitutional agencies.

Inter alia, they are also asking the court for a conservatory order to prohibit the Finance Minister from disbursing any expenditure or any appropriated expenditure approved or purportedly approved by the National Assembly in respect of the constitutional agencies for the fiscal year 2021 until the hearing and determination of this matter which they deem urgent.

The constitutional agencies include the Women and General Equality Commission, the Guyana Elections Commission, the Judicial Service Commission, the Office of the Ombudsman, the Public Service and Teaching Service Commissions, the Public Service Appellate Tribunal, the Public Procurement Commission, the Ethnic Relations Commission, the Indigenous Peoples Commission, Parliament Office, the Rights of the Child Commission, the Chambers of the Director of Public Prosecutions, the Supreme Court of Judicature, and the Office of the Auditor-General.

Apart from Mahipaul and McDonald, the other applicants in this matter are Allan Munroe, Chairman of the Teaching Service Commission; Clinton Conway, Member of the Police Service Commission; Michael Somersall, Chairman of the Public Service Commission; Dawn Gardner, First Vice President of the Guyana Public Service Union and the Police Service Commission.

The applicants are being represented by Roysdale Forde, SC, and Attorneys-at-law Khemraj Ramjattan, Mayo Robertson, Raphael Trotman, Geeta Chandan-Edmond, Amanza Walton-Dazir, Olayne joseph, and Darren Wade. Besides the constitutional agencies, Attorney General Anil Nandlall, SC, Dr Singh; Speaker of the National Assembly, Manzoor Nador; and Clerk of the National Assembly, Sherlock Isaacs are also listed as respondents.

It is expected that this matter will come up soon at the High Court in Georgetown.