Court has no jurisdiction to hear APNU/AFC’s attempts to block constitutional agencies’s budgets – AG

Attorney General Anil Nandlall

In response to a legal challenge raised by the A Partnership for National Unity/Alliance For Change (APNU/AFC) regarding $11.2 billion passed for constitutional agencies in the 2020 emergency budget, Attorney General and Senior Counsel Anil Nandlall has contended that the court has no jurisdiction to hear the caseNandlall was named as a respondent in the case brought last year November by AFC General Secretary and Member of Parliament David Patterson, who is contending that the budget breached Section 80 (B, 2) of the Fiscal Management and Accountability Act of 2015.Patterson also sought a number of orders. These orders include one to stop the Finance Ministry from disbursing monies to the agencies, which include the Guyana Elections Commission (GECOM) and the Audit Office of Guyana.

AFC MP David Patterson

According to the Attorney General in his submissions, the matter has already been overtaken and dealt with by Parliament and is merely of academic importance now. As such, Nandlall contended that as a matter of policy, it should not be heard by the High Court.

“It is trite law that the first duty of every court is to satisfy itself of its jurisdiction to hear and determine the matter before it… it is clear that in these proceedings the applicant is inviting the court to enquire into proceedings of Parliament,” Nandlall said.

“In short, he is asking this honourable court to declare unlawful a number of processes and proceedings which took place in Parliament in relation to the National Estimates and Expenditure of Guyana for the year 2020.”

According to Nandlall, the budget was passed by way of the appropriation bill 2020, as authorised by Article 171 (1) and Article 218 of the Constitution of Guyana. Article 171 (1) states “subject to the provisions of this Constitution and of the rules of procedure of the National Assembly, any member of the Assembly may introduce any Bill or propose any motion for debatein, or may present any petition to, the Assembly, and the same shall be debated and disposed of according to the rules of procedure of the Assembly.”

Nandlall, therefore, noted that the applicant is challenging Finance Minister Dr Ashni Singh acting according to the constitutional provisions. He pointed out that Article 172 (2) of the Constitution grants immunity to Members of Parliament (MPs) and their words and action brought by “petition, bill, resolution, motion or otherwise.”

The AG further cited the “doctrine of necessity” in pointing out that the PPP inherited Government at a time when the nation was in a crisis and it was, therefore, necessary to take steps to safeguard the continuation of the effective running of the State.

“At the time of the passing of the emergency budget, Guyana was in a financial crisis hence the present Government was forced, out of necessity to urgently pass the said budget so as to enable the Government to restore stability in Guyana and to offer much-needed relief to Guyanese,” Nandlall said in his submissions.

“Further, the Government was obligated to mop up and bring into the public accounting architecture as soon as was practicable after the summoning of Parliament, billions of dollars that were unlawfully spent from the Consolidated Fund without parliamentary approval as well as, billions of dollars drawn from the contingency fund without complying with the law.”

He noted that the Government’s priority last year was to pass monies for these agencies, rather than establish committees in Parliament that would focus on procedural matters. According to Nandlall, the subsequent passage of the Appropriation Act granted the budget the necessary “legislative legitimacy.”

The AG also pointed out that Patterson’s challenge is a moot issue since the Government passed an amendment to the Fiscal Management and Accountability Act (FMAA), which simplified the process to pass the budget for constitutional agencies and therefore removed all legal impediments.

The legislation was passed on February 4, with the Finance Minister explaining that his amendments will fix the process implemented by the previous APNU/AFC regime in 2015 to have the constitutional agencies present their budgets separately from the national budget.

Previously, the budgets for constitutional agencies would have to be considered separately by the National Assembly and approved, after which it would be incorporated in the national budget. According to the Finance Minister, his Government has now removed that two-step process and combined them into a single presentation to the National Assembly for consideration.

“In the circumstances, we pray this honourable court would dismiss the applicant’s fixed date application and rule that these proceedings are academic at this time because there is no legal issue in controversy and as such, the declaratory orders sought by the applicant have no useful purpose or utility,” Nandlall submitted.