High Court throws out Conservatory Orders sought in Coalition’s challenge to FMAA amendments

High Court Judge, Justice Naresh Harnanan today dismissed an application by the main Parliamentary Opposition, which sought several Conservatory Orders, in its challenge to the constitutionality of the amendments to the Fiscal Management and Accountability Act (FMAA).

The amendments, which were passed in the National Assembly in early February, have increased the efficiency and effectiveness with which Parliament could consider the budget of constitutional agencies.

Following its successful passage, the Opposition, led by Member of Parliament, Hon. Roysdale Forde challenged the constitutionality of the legislation. A range of Conservatory Orders, which could have affected the functioning of the agencies, were also sought.

They included prohibiting the Finance Minister from presenting the budgets of agencies in the National Assembly and the consideration of their estimates. 

The orders also sought to prevent the Finance Minister from disbursing funds approved by the National Assembly to the agencies.

Attorney General and Minister of Legal Affairs, Hon. Mohabir Anil Nandlall, SC, argued that no court of competent jurisdiction would put a hold on the substantive activities of the constitutional agencies. Had the court issued the orders, the Attorney General said, the operations of the Parliament, the Judiciary, the Office of the Auditor General, the Director of Public Prosecutions, along with all constitutional and service commissions would have been halted.

“The court dismissed Mr. Forde’s application for these conservatory orders on the grounds that they were without merit, that no evidence and legal principles were put forward to justify the court acting and making those exceptional orders that he sought and that he could not answer the argument of the public interest that would be affected, if the orders which he sought were granted.”

In arguments today, the AG told the Court that the Appropriation Bill was successfully passed in the National Assembly on Thursday and later assented to by President, Dr. Mohamed Irfaan Ali. The Bill was also gazetted today.

“Many of the orders sought to stop these budgets from being passed. Those orders obviously were overtaken by time and could not have been stopped anymore. So, they failed naturally, by effluxion of time and the occurrence of events.”

The amendments passed in February had reversed several provisions inserted into the principal Act in 2015, shortly after the APNU+AFC Coalition took office.

The APNU+AFC’s supported amendments had laid out a two-stage process where the budgets of the constitutional agencies were presented, considered and approved by the National Assembly, after which they would be incorporated into the national budget.

That process, Senior Minister in the Office of the President with responsibility for Finance, Hon. Dr. Ashni Singh had argued, curtailed the role of the Executive, where the budgets no longer went to National Assembly with the signature of consent from Cabinet, as is required by the Constitution. Instead, it was submitted to the offices of the Clerk of the National Assembly.

In his arguments in February, the Attorney General had said the Constitution of Guyana allows the Minister of Finance to exercise a Presidential delegated function of preparing and laying the budget in the National Assembly.

AG Nandlall had said Guyana has a financial structure that is similar to 49 other countries across the Commonwealth. Meanwhile, the Court ordered Mr. Forde to pay $200,000 in costs to the Attorney General before the hearing of the substantive matter, scheduled for March 15.