Full Court Dismisses Appeal by Ganesh Mahipaul and Others in Appropriation Act matter
1. The Full Court on Friday, 10th day of September, 2021, comprising of the Honourable Justices Brassington Reynolds and Sandil Kissoon, dismissed a Notice of Appeal and Notice of Application for a number of Conservatory Orders in an appeal filed by Ganesh Mahipaul, Coretta McDonald, General Secretary Of The Guyana Teachers Union, Dawn Gardner, First Vice President Of The Guyana Public Service Union, Michael Somersall, 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.
2. These proceedings were filed against the Attorney General and the Minister of Finance, the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission, the Public Service Appellate Tribunal, the Public Procurement Commission, the Guyana Elections Commission, the Office Of The Ombudsman, the Ethnic Relations Commission, the Human Rights Commission, the Women & Gender Equality Commission, the Indigenous Peoples Commission, the Rights Of The Child Commission, the Chambers Of The Director Of Public Prosecutions, the Office Of The Auditor General, Supreme Court Of Judicature, Parliament Office, the Speaker Of The National Assembly, and The Clerk Of The National Assembly.
3. The Appellants were represented by Roysdale Forde, SC, Khemraj Ramjattan, Raphael Trotman, Geeta Chandan-Edmond, Amanza Walton-Desir and Darren Wade. The Attorney General and Minister of Finance were represented by Mohabir Anil Nandlall, SC, Nigel Hawke, Solicitor General, Deborah Kumar, Deputy Solicitor General. The Judicial Service Commission was represented by Stephen Fraser, SC, the Speaker of The National Assembly, and The Clerk Of The National Assembly were represented by Pratesh Satram and Manoj Narayan.
4. Having heard the Attorneys-at-Law for the parties, the Honourable Justices Brassington Reynolds and Sandil Kissoon ordered and directed that the Notice of Appeal and Notice of Application be dismissed. Their Honours also ordered Costs against the Applicants/Appellants to be paid to the Attorney General, the Minister of Finance, the Judicial Service Commission and the Speaker and Clerk of the National Assembly in the sum of fifty thousand dollars ($50,000) each.
5. These proceedings filed in the Full Court flowed directly from a decision of Justice Nareshwar Harnanan, sitting in the High Court, refusing to grant certain reliefs claimed by Ganesh Mahipaul et al. as is explained below.
HIGH COURT
1. By Fixed Date Application No. 239 FDA/2021 and Notice of Application-Urgent and made with Notice, both filed on the 22nd day of February 2021 by Mr. Roysdale Forde SC on behalf of Ganesh Mahipaul, instituted legal proceedings in the High Court against those named in paragraph 2.
2. In the High Court, the Appellants’/Applicants asked to Court to grant several Orders, including:
a. A Declaration that the Constitutional Agencies listed in the Third Schedule to the Constitution of the Cooperative Republic of Guyana are to function independently, impartially and free from the exercise of any control by the Executive and or any other entity;
b. A Declaration that the Constitutional Agencies established by the Constitution of the Cooperative Republic of Guyana are to function independently, impartially and free from the exercise of any control by the Executive and or any other entity;
c. A Declaration that the inclusion of the Constitutional Agencies listed in the Third Schedule to the Constitution of the Cooperative Republic of Guyana as Budget Agencies in the Schedule to and under the Fiscal Management and Accountability Act Cap 73:02 is inconsistent with the independence assured to those Constitutional Agencies in the Constitution of the Cooperative Republic of Guyana; and
d. A declaration that the inclusion of the Constitutional Agencies listed in the Third Schedule of the Constitution of the Cooperative Republic of Guyana as Budget Agencies in the Schedule to the Fiscal Management and Accountability Act Cap 73:02 render the said Constitutional Agencies subject to treatment as Budget Agencies under the provisions of the Aforesaid Act, such treatment being wholly inconsistent with the independence and financial autonomy contemplated and provided for in Article 222A in particular and the provisions of the Constitution of the Cooperative Republic of Guyana.
3. While these and other substantive issues were to be heard, the Appellants/Applicants, by Notice of Application, asked Justice Harnanan in the High Court to grant the following conservatory orders:
a) That pending the hearing and determination of the Fixed Date Application a Conservatory Order directed to the Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance of the Government of the Cooperative Republic of Guyana prohibiting the said Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance of the Government of the Cooperative Republic of Guyana from tabling and or presenting to the National Assembly for the consideration and or approval by the said National Assembly any Budget Submissions and or Proposals of the Constitutional Agencies listed in the Third Schedule of the Constitution of the Cooperative Republic of Guyana and in the Schedule of the Fiscal Management and Accountability Act cap. 73:02 by virtue of the Fiscal Management and Accountability, (Amendment) Act of 2021 which were approved and or considered or were required to be approved and or considered by the Ministers of the Government of Guyana being the Concerned Minister(s) in accordance with Section 14 of the Fiscal Management and Accountability Act cap. 73:02 for the Fiscal Year 2021;
b) That pending the hearing and determination of this Application a Conservatory Order directed to the Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance of the Government of the Cooperative Republic of Guyana prohibiting the said Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance of the Government of the Cooperative Republic of Guyana from tabling and or presenting to the National Assembly for the consideration and or approval by the said National Assembly any Budget Submissions and or Proposals of the Constitutional Agencies listed in the Third Schedule of the Constitution of the Cooperative Republic of Guyana and in the Schedule of the Fiscal Management and Accountability Act cap. 73:02 by virtue of the Fiscal Management and Accountability, (Amendment) Act of 2021 which were approved and or considered or were required to be approved and or considered by the Ministers of the Government of Guyana being the Concerned Minister(s) in accordance with Section 14 of the Fiscal Management and Accountability Act cap. 73:02 for the Fiscal Year 2021;
c) That pending the hearing and determination of the Fixed Date Application a Conservatory Order directed to the Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance in the Government from tabling and or presenting to the National Assembly any Appropriation Bill containing and or including any expenditure of or purported Appropriations in respect of any of the Constitutional Agencies listed in the Third Schedule of the Constitution of the Cooperative Republic of Guyana;
d) That pending the hearing and determination of this Application a Conservatory Order directed to the Minister prohibiting the Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance in the Government from tabling and or presenting to the National Assembly any Appropriation Bill containing and or including any expenditure of or purported Appropriations in respect of any of the Constitutional Agencies listed in the Third Schedule of the Constitution of the Cooperative Republic of Guyana;
e) That pending the hearing and determination of the Fixed Date Application a Conservatory Order prohibiting the Minister of Finance and or the Senior Minister in the Office of the President , or such other Minister assigned the responsibility for Finance in the Government of Guyana, 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 listed in the Third Schedule to the Constitution and in the Schedule to the Fiscal Management and Accountability Act Cap. 73:02 with respect of the Fiscal Year 2021 until the hearing and determination of this Application;
f) That pending the hearing and determination of this Application a Conservatory Order prohibiting the Minister of Finance and or the Senior Minister in the Office of the President, or such other Minister assigned the responsibility for Finance in the Government of Guyana, 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 listed in the Third Schedule to the Constitution and in the Schedule to the Fiscal Management and Accountability Act Cap. 73:02 with respect of the Fiscal Year 2021 until the hearing and determination of this Application;
g) That pending the hearing and determination of the Fixed Date Application an Order directed to the Speaker of the National Assembly restraining the consideration and approval by the National Assembly of the Expenditure of the Constitutional Agencies listed in the Third Schedule of the Constitution for the Fiscal year 2021; and
h) That pending the hearing and determination of this Application an Order directed to the Speaker of the National Assembly restraining the consideration and approval by the National Assembly of the Expenditure of the Constitutional Agencies listed in the Third Schedule of the Constitution for the Fiscal year 2021.
4. At the hearing of the Notice of Application for conservatory orders the Honourable Attorney General, Mr Mohabir Anil Nandlall SC MP, appearing in person and on behalf of Dr Ashni Singh, the Minister of Finance argued that the legislation which the Appellants/Applicants were seeking conservatory orders against was already in force in the form of Appropriation Act 2021 (Act No. 5 of 2021), which authorised the Minister of Finance to disburse expenditures approved by the National Assembly in respect of Constitutional Agencies. The Attorney General reported to the Court that the National Budget 2021 was passed on the 4th March 2021, assented to by his Excellency Dr. Mohamed Irfan Ali, and published in the Official Gazette all on the same date. The effect of these occurrences, the Attorney General said, was that the conservatory orders being sought by the Appellants/Applicants were overtaken by crucial events, and that the issues they raised had become academic.
5. Mr Roysdale Forde SC, conceded that all conservatory orders were spent save and except for the conservatory orders stated at e and f above.
6. The Attorney General also argued that the Notice of Application was misconceived and without merit because it sought to put the Appropriation Act on hold by a challenge to the Fiscal Management and Amendment Act in the substantive action herein filed by the Applicants in the High Court and which they contend was unconstitutional. He pointed out that in effect the Applicants were seeking orders that stopped another Act from coming into force when the substantive case did not challenge the Appropriation Act but was a challenge to the Fiscal Management and Amendment Act. The Attorney General further argued that the substantive action was predicated on amendments made on the Fiscal Management and Amendment Act 2015.
7. On the 5th day of March, 2021, Justice Nareshwar Harnanan refused to grant conservatory orders sought by Mr Roysdale Forde SC on behalf of the Applicants.
8. Accepting the submissions of the Attorney General, Justice Harnanan stated that the issues raised by the Appellants/Applicants introduced constitutional matters of importance and that, save and except for E and F, all other reliefs sought under the Notice of Application were spent. Further, Justice Harnanan ruled that the Appellants/Applicants had failed to demonstrate by evidence or legal arguments:
a. why it was just and reasonable for the conservatory orders to be granted;
b. how the public interest is affected by the disbursement of funds approved by the National Assembly in respect of Constitutional Agencies; and
c. how a refusal of the conservatory orders would render the Appellants/Applicants Fixed Date Application nugatory.
9. Consequently, the Court ruled that no prejudice would be caused by the disbursements pursuant to the Appropriation Act 2021 and in the spirit of good governance and functional democracy the Court awarded costs to the Attorney General in the sum of $200,000 to be paid by the Appellants/Applicants on or before the hearing of the substantive Fixed Date Application on the 15th day of March, 2021.
FULL COURT
10. Mr Roysdale Forde SC on behalf of the Appellants/Applicants by Notice of Appeal dated 8th March, 2021 and filed on the 9th March, 2021, appealed against Justice Harnanan’s decision refuse the conservatory orders which his clients sought. Mr Roysdale Forde SC also filed a Notice of Application seeking the essentially similar conservatory orders as those at paragraph 8.
11. Written submissions were filed to the Full Court by the Appellants and the Attorney General.
12. On the 10th day of September 2021 (today), at a Full Court hearing, the Honourable Justices Brassington Reynolds and Sandil Kissoon ordered and directed that the Notice of Appeal and Notice of Application filed on behalf of the Appellants/ Applicants, Ganesh Mahipaul, Coretta Mcdonald, General Secretary Of The Guyana Teachers Union, Dawn Gardner, First Vice President Of The Guyana Public Service Union, Michael Somersall, 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, be dismissed in view of the fact that the issues raised in the appeal and notice of application have been overtaken by substantive events, and, in fact the substantive Fixed Date Application is fixed for ruling before Justice Harnanan on the 4th October, 2021.
13. Costs were awarded against the Applicants/ Apppellants and in favour of the First Second, Third and Seventeenth named Respondents in the sum of fifty thousand dollars ($50,000) each.
14. That State in this matter was represented by the Honourable Attorney General, Mr Mohabir Anil Nandlall SC MP, Mr. Nigel Hawke, Solicitor General, Ms. Deborah Kumar, Deputy Solicitor General, Ms. Raeanna Clarke, Senior State Advisor, Mr. Teakaram Singh, State Counsel, Ms. Asasha Ramzan, State Counsel, and Mr. Chevy Devonish, State Counsel.