Contrary to submissions by Attorney General Anil Nandlall, SC, Opposition Member of Parliament (MP) David Patterson is contending that the High Court has jurisdiction to hear a legal challenge regarding $11.2 billion that was passed for constitutional agencies in the 2020 emergency budget.
Patterson is asking the High Court to declare that the consideration and approval of budget proposals for constitutional agencies by the National Assembly on September 1, 2020, were done contrary to Section 80 B (2) of the Fiscal Management and Accountability Act (FMAA).
Patterson, who previously served as Public Infrastructure Minister under the previous APNU/AFC Government, has complained that the proposals were not made available to his party before September 1, 2021, which constitutes a breach of the FMAA.
He is also seeking several orders including one to stop the Finance Ministry from disbursing monies to the agencies, which include the Guyana Elections Commission (GECOM), the Audit Office of Guyana, and the Supreme Court of Judicature.
For his part, Nandlall contended that the matter has already been overtaken and dealt with by Parliament and is merely of academic importance now. In this regard, the Attorney General submitted that as a matter of policy, the case should not be heard by the High Court.
As such, he urged the Court to dismiss Patterson’s application.
“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. [Patterson] is asking this 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,” Nandlalll argued.
However, Patterson contended that the submissions made by the Attorney General that the Court does not have jurisdiction to enquire into whether Finance Minister Dr Ashni Singh complied with the law is misconceived. “It is submitted that the issue of the failure to comply with Section 80 B (1) and (2) of the Fiscal Management and Accountability Act Cap 73:02 are proper subject matters of judicial review.”
According to the Opposition Member of Parliament, the Finance Minister must obey the law which has been enacted by Parliament and is subject to judicial review when he fails to obey the law. Patterson, therefore, maintains that lack of compliance with the process for consideration and approval of budget proposals for constitutional agencies renders the consideration and/or approval of the 2020 budget bad in law, null, and of no legal effect.
Patterson argued that the Government’s failure to circulate the budget proposals for the constitutional agencies to the APNU/AFC cannot be justified by the doctrine of necessity as is being advanced by Nandlall. “It is submitted that the Doctrine of Necessity has no application to the instant case,” he said.
According to him, there was clearly no necessity for the unwarranted and flagrant breach of the law. “There is no basis for the reliance and invocation of the doctrine of necessity, or the need to act in any emergency as Article 219 of the Constitution provides for the situation which the respondents claim was an emergency. The claim of an emergency was clearly contrived.”
He argued, too, that the aforementioned constitutional provision empowers the Finance Minister to make withdrawals of such sums from the Consolidated Fund as may be necessary for meeting the expenditure of the Public Services until the expiry of a period of nine months commencing with the date on which the National Assembly first meets after the dissolution.
Taking this into consideration, he argued, “Thus, the [Finance] Minister acted contrary to law, and in breach of the Fiscal Management and Accountability Act when he contemptuously disregarded the provisions of the Fiscal Management and Accountability Act.”
In relying on the doctrine of necessity, the Attorney General noted 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 budget to enable the Government to restore stability in Guyana and to offer much-needed relief to Guyanese.”
The amendments to the FMAA were passed on February 4, 2020. They simplified the process implemented by the previous APNU/AFC Government in 2015 to have 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 into the national budget. But the PPP has now removed this two-step process and combined them into a single presentation to the National Assembly for consideration.
