Acting Chief Justice Roxane George SC may likely rule on June 14th on the constitutionality of government’s decision to deposit the US$18 million signing bonus received from ExxonMobil subsidiary Esso Exploration and Production Guyana Limited, CNOOC Nexen Petroleum Guyana Limited and Hess Guyana Exploration Limited into an account at the Bank of Guyana.
Former Attorney General (AG) Anil Nandlall has challenged the decision by the government through an action in the High Court in which he has argued that the sum must be credited to the Consolidated Fund, as it is public money.
He is named the applicant, while Attorney General Basil Williams SC, and Minister of Finance Winston Jordan are listed as the respondents.
At an in-chamber case management hearing yesterday afternoon, Justice George adjourned the matter until June 14th, while noting that once no clarifications are needed from the legal submissions of either side, the court will deliver its ruling on the application.
Yesterday had initially been fixed for hearing of the matter, but this was no longer possible due to the failure of the respondents to file their affidavit in defence within the time previously stipulated by the court.
Counsel for the respondents, Oneka Archer-Caulder had subsequently filed an application for extension of time which the court heard and granted yesterday, ordering that the affidavit be filed no later than March 20th.
The applicant will then have one week thereafter in which to file any response he wishes to make.
As it relates to the filing of submissions, Nandlall was given no later than April 20th to so do, while the respondents are to file theirs on or before May 11th.
Nandlall is being represented by attorneys Rajendra Jaigobin and Manoj Narayan.
In his application, the former AG argues that “The said sum [bonus] …falls within the category of “revenues or other monies” contemplated by Article 216 of the Constitution as well as “all public monies” contemplated by Section 38 (1) of the Fiscal Management and Account-ability Act, Chapter 73:02, and accordingly, must be credited fully and promptly paid into and form one Consolidated Fund.”
He is asking the court for a declaration that the deposit received by government as a signature bonus pursuant to Clause 33 of the Petroleum Agreement, executed on 27th June, 2016, into an account within the Bank of Guyana, designated in writing by the Minister of Finance and not into the Consolidated Fund “is contrary to, and in violation of the letter and spirit of Article 216 of the Constitution of the Cooperative Republic of Guyana and Section 38 (i) of the Fiscal Management and Accountability Act, Chapter 73:02, Laws of Guyana and is accordingly, unconstitutional, unlawful and illegal.” He is also seeking an order directing the Minister of Finance to forthwith transfer and deposit the sum into the Consolidated Fund.
The deal has been mired in controversy after it was publicly disclosed that the money was received.
Former Auditor General Anand Goolsarran has said that the signing bonus should be returned to ExxonMobil as it cannot be considered as legitimate.
Nandlall, an opposition MP, in his court documents made it clear that part of his parliamentary duties include the scrutiny of actions and omissions of the Executive Government with a view to ensuring that there is compliance with the Constitution and the laws of Guyana.
He noted that Article 33 of the said contract provides, “The contractor shall pay the Government a signature bonus of
eighteen million United States Dollars (US$18,000,000). Such payment will be made within a period of fifteen (15) Business Days after the Effective Date, or such earlier date as agreed amongst the Parties. Such payment will be made to a bank account within the Bank of Guyana, which is owned by the Government as designated in writing by the Minister of Finance of the Government. (The) Contractor shall verify such bank accounts and the Minister agrees to cooperate, assist and provide (the) Contractor any information it requires to conduct such verification.”
According to Nandlall, pursuant to the said Article and by its own public admissions, the government received the money from the contractor and it was duly deposited by the Minister of Finance into an account established at the Bank of Guyana for that purpose.
He reminded that Article 216 of the Constitution of the Cooperative Republic of Guyana provides for “All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund”.
Section 38 of the Fiscal Management and Accountability Act, Chapter 73:02, he added, provides for “(1) All public moneys raised or received by the Government shall be credited fully and promptly to the Consolidated Fund, except (a) moneys credited to an Extra budgetary Fund as stipulated in the enabling legislation establishing that fund; (b) moneys credited to a Deposit Fund; and (c) as stipulated in the Constitution. (2) The Consolidated Fund shall be managed by the Minister or by an official in the Ministry to whom the Minister has delegated that responsibility”.
Nandlall argued that given the fact that these monies fall within the categories “revenues or other monies” and “all public monies,” the deposit into an account established by the Minister of Finance within the Bank of Guyana and keeping it there without depositing same into the Consolidated Fund is in breach of and contrary to the letter and spirit of Article 216 of the Constitution as well as Section 38 (1) of the Fiscal Management and Accountability Act, Chapter 73:02.
