Opposition Member of Parliament (MP) Ganesh Mahipaul and a number of other persons have filed an application against the Attorney General (AG), the Minister of Finance, the Judicial Service Commission (JSC) and other constitutional agencies; seeking a declaration from the court that the agencies be allowed to function independently, impartially and free of the exercise of any control by the Executive or any other entity.
Specifically, Mahipaul is asking the Supreme Court of Judicature to declare that it is entitled to operate and function free of the exercise of any control by the Executive or any other entity by virtue of Article 122 of the Constitution.
He also wants the court to declare that the inclusion of the constitutional agencies as budget agencies in the Schedule to and under the Fiscal Management and Accountability Act (FMAA) is inconsistent with the independence assured to those constitutional agencies.
In addition to the JSC, the other constitutional agencies are the Public Service Commission, Teaching Service Commission, Public Service Appellate Tribunal, Public Procurement Commission, Guyana Elections Commission, Office of the Ombudsman, Ethnic Relations Commission, Human Rights Commission, Women and Gender Equality Commission, Indigenous Peoples Commission, Rights of the Child Commission, Chambers of the Director of Public Prosecutions, Office of the Auditor General, the Supreme Court of Judicature and Parliament Office.
Apart from the AG, Finance Minister and JSC, all these constitutional agencies have been listed as respondents in the action.
Mahipaul (the Applicant), argues among other things that the power and exercise of budgetary and fiscal control over budget agencies under the Act by government ministers in general, and the finance minister in particular—all being members of the Executive, is inconsistent with and contrary to the Constitution.
The Applicant wants the court to so declare, even as he argues that the budget agencies are to be independent, impartial and have financial autonomy of the constitutional agencies and that it is unconstitutional for a minister, and the finance minister in particular to approve Budget submissions or proposals of the constitutional agencies listed as budget agencies.
The Applicant advances that such powers reside exclusively in the Legislature/the National Assembly.
Mahipaul wants the entire FMAA to be declared void since according to him, it establishes a system for the treatment of Budget submissions or proposals of constitutional agencies which he says is inconsistent with the scheme and provisions laid down in the Constitution for the treatment of Budget submissions and or proposals of the constitutional agencies.
According to Mahipaul, the expenditure of each of the constitutional agencies ought to be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention and is disbursable out of the said Fund without an Appropriation Act and cannot therefore form part of the estimates to be included in any Appropriation Bill and or Act, as it would be unconstitutional.
Another declaration being sought by Mahipaul is that the Amendments enacted in the FMAA are in breach of the doctrine of the Separation of Powers, and therefore unconstitutional, as it renders Parliament and the Judiciary dependent on the Executive for funding.
To the declarations being sought, the Applicant is hoping that the court would also grant concomitant orders and any further order it deems just, along with court costs.
In addition to Mahipaul the other applicants in the action are Coretta Mc Donald, General Secretary of the Guyana Teachers Union; Dawn Gardiner, First Vice President of the Guyana Public Service Union; Michael Sommersaul, Chairman of the Public Service Commission; Clinton Conway, Member of the Police Service Commission, the Police Service Commission and Allan Munroe, Chairman of the Teaching Service Commission.
Mahipaul is being represented by a battery of attorneys led by Senior Counsel Roysdale Forde.
Mahipaul deposes among other things in the grounds of his application, that the expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention approved by the National Assembly after a review and approval of the entity’s annual budget as a part of the process of the determination of the national budget.
He said that each entity should then manage its subvention in a manner it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices and procedures approved by the National Assembly to ensure accountability; and that all revenues shall be paid into the Fund; and that the terms and conditions applicable to grants and donations destined for the entities shall be approved by, and disbursements shall be made through, such appropriate government agency or department as determined by the National Assembly.
Mahipaul said that the National Assembly passed the Fiscal Management and Accountability (Amendment) Act which was assented to by former President David Granger on August 5th, 2015 which outlined a procedure for the request of constitutional agencies for funding, to be considered directly by and only by the National Assembly instead of the Executive micro managing the activities of those agencies.
According to the Applicant, the FMAA established for the first time, a legislative foundation for the independence of the constitutional agencies of Guyana and gave them complete control of their finances.
He said that the National Assembly then passed Constitutional Amendment Act, No. 1 of 2016 which was assented to by Granger on the January 11th, 2016, in which the Parliament Office was added as an entity listed among the constitutional agencies.
Mahpaul outlines in his application that the National Assembly recently passed the Fiscal Management and Accountability Amendment Bill of 2021 assented to on February 9th, which repealed Section 80B (1) to (4) of the FMAA which were amended by the Fiscal Management and Accountability (Amendment) Act of 2015.
He argues that by amending the Schedule to the Fiscal Management and Accountability Act to now include the constitutional agencies they are once again relegated to mere budget agencies which are “subject to the whims and fancies of the Executive.”
