PSC, coalition MPs ask High Court to declare FMAA unconstitutional

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The Police Service Commission (PSC) and A Partnership for National Unity/Alliance For Change (APNU/AFC) Members of Parliament Ganesh Mahipaul and Coretta McDonald are among several applicants that are requesting the High Court to declare the Fiscal Management and Accountability (Amendment) Act (FMAA) of 2021 unconstitutional.

On February 4, 2021, the People’s Progressive Party/Civic (PPP/C) Government amended the FMAA to streamline the budget process to improve efficiency and the effectiveness with which Parliament can consider the budget of the various constitutional agencies.

The Fiscal Management and Accountability (Amendment) Act 2021 amends the FMAA Chapter 73:02 to allow for the correction of several anomalies relating to the budget process for the constitutional agencies.

Senior Minister with responsibility for Finance, Dr Ashni Singh had told the National Assembly that the amendments will fix the process implemented by the previous regime in 2015 to have the constitutional agencies present their budgets separately from the national budget.

The constitutional agencies hereinafter referred to as the respondents are the Judicial Service Commission (JSC), the Public Service Commission (PSC), the Teaching Service Commissions (TSC), the Public Service Appellate Tribunal (PSAT), the Public Procurement Commission (PPC), the Guyana Elections Commission (GECOM), the Office of the Ombudsman, and the Ethnic Relations Commission (ERC).

They also include the Women and Gender Equality Commission, the Indigenous Peoples Commission, the Rights of the Child Commission (RCC), the Chambers of the Director of Public Prosecutions (DPP), the Office of the Auditor General, the Supreme Court of Judicature, and Parliament Office.

In a Fixed Date Application (FDA), Mahipaul, McDonald, the PSC, and others contended that the amendments to the Fiscal Management and Accountability (Amendment) Act 2021 subject these constitutional agencies to control by the Executive which violates Articles, 122A, 122 A (2), 187 (4), 192 (4), 212 G (2), 215A, 222A, 223 (4), and 226 of the Constitution of Guyana.

The applicants submitted that these provisions provide that the functions exercised by the constitutional agencies shall not be subjected to the direction and control of the Executive or any other person or authority.

With regards to the Supreme Court of Judicature, they submitted that Article 122 A (2) states that it shall be autonomous and shall be funded by a direct charge on the Consolidated Fund. The applicants said that this constitutional provision also states that such courts shall operate following the principles of sound financial and administrative management.

They contended that the FMMA (Amendment) Act of 2015 gave effect to provisions in the Constitution that provided for and assured the financial authority of constitutional agencies. According to the applicants, the procedures set out in the 2015 amendments to the Fiscal Management and Accountability Act Cap 73:02 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.

The applicants added that those amendments outlined that in preparation of their budget submissions, the constitutional agencies would be guided by the budget circular issued by the Finance Ministry as set out in the FMAA.

This was implemented, they say, because there was concern that the fiscal autonomy of the constitutional agencies might be abused and that they could demand any amount from the Executive without providing supporting arguments for justification.

“…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.”

They submitted 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.

According to the applications, the amendments allow the concerned Minister/Finance Minister and members of the National Assembly to limit the size of allocation as well as limit the items of the budgets of the respondents and consequently affect their work and/or programme.

“…the process set out by 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 budgets agencies.”

Moreover, the applicants contend that the Appropriation Act of 2020 which was assented to by the President in September 2020, is in breach of the Constitution as it includes as matters of appropriation, the expenditures of constitutional agencies listed whose expenses are stated and provided in the Constitution to be direct charges on the Consolidated Fund.

Taking this into consideration, it is being argued that the amendments to the Fiscal Management and Accountability (Amendment) Act (FMAA) of 2021 are 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 which are assured by the Constitution.

Among other things, the applicants are asking the High Court to declare the Fiscal Management and Accountability (Amendment) Act 2021 unconstitutional.

They also want the court to order that the amendments enacted in the Fiscal Management and Accountability (Amendment) Act of 2021 are in breach of the doctrine of the separation of powers, unconstitutional, illegal, null, and void as its renders the Parliament and the Judiciary dependent on the Executive for funding.

The applicants are further seeking an order that the power and control vested in the Finance Minister to approve the budget submissions and/or proposals of the respondents is unconstitutional, null, void, and of no legal effect, inconsistent with and in conflict with Articles 122A, 212(G) and 222A of the Constitution as these agencies are to function independently, impartially and free of the exercise of any control by the Executive.

A conservatory order is also being sought to prohibit the Finance Minister, his servants, agents, subordinates, or whomsoever 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 FDA.

The other applicants in this matter are First Vice President of the Guyana Public Service Union, Dawn Gardiner; Chairman of the Public Service Commission, Michael Sommersaul; Member of the Police Service Commission, Clinton Conway and Chairman of the Teaching Service Commission Allan Munroe.