High Court dismisses APNU MPs case to restrain Finance Minister from disbursing funds to constitutional agencies

On Friday, High Court Judge Nareshwar Harnanan dismissed a Notice of Application filed by APNU/AFC Members of Parliament (MPs) Ganesh Mahipaul and Coretta McDonald.

In the application, the Parliamentarians, and others sought an order to restrain the Senior Minister with responsibility for finance, Dr Ashni Singh, from disbursing funds to several constitutional agencies, in keeping with estimates in the Appropriation Act 2021. The effect of the ruling is that Minister Singh is legally free to disburse funds to these agencies in keeping with the Act.

Attorney General and Legal Affairs Minister Anil Nandlall contended that the Orders in the application have been overtaken given the fact that the Appropriation Act 2021 was passed on March 4, 2021, and that Minister Singh was likely in the process of effecting disbursements.  

For this reason, Nandlall submitted that the issues raised in the application are now merely academic, and which, as a matter of law, should not be entertained by the High Court.

Roysdale Forde, SC, who appeared on behalf of the applicant conceded that some of the Orders sought were spent, but insisted that the other Orders requested remained live and open to litigation. 

By those Orders, Forde was seeking to prevent the Minister of Finance, his servants, agents, subordinates, or whomsoever from disbursing any expenditure or any appropriated expenditure approved or purportedly approved by the National Assembly for constitutional agencies.

Nandlall, however, argued that Forde was in effect asking the court to suspend the Appropriation Act 2021 from taking effect though it has already been assented to by President Dr Mohamed Irfan Ali and published in the Official Gazette. 

 The Attorney General further argues that the Appropriation Act was issued by virtue of Article 218 of the Constitution, upon the approval of the National Assembly of the Estimates and Expenditures.  Taking this into consideration, he submitted that Minister Singh is constitutionally compelled to disburse funds to the constitutional agencies.

“In effect, the disbursement of funds is a constitutionally mandated process and cannot be prohibited by the Judiciary as the Constitution is the supreme law and the Judiciary is subordinate to the Constitution.  Therefore, a constitutional process cannot be injuncted by the Judiciary,” he said.

Moreover, the Attorney General contended that the application was misconceived and without merit because it sought to put the Appropriation Act 2021 on hold by a challenge to the Fiscal Management and Amendment Act in a Fixed Date Application based on alleged unconstitutionality.

Finally, and quite significantly, the Attorney General argued that if the Orders sought by Forde were granted, the constitutional agencies, including the Supreme Court of Judicature, would be deprived of their allocations, thereby threatening their ability to offer the various essential public services they provide to the Guyanese people.

For his part, Justice Harnanan accepted that the issues raised by the applicants introduced constitutional matters of importance, but except for two of the Orders, all the other reliefs were overtaken by events and were therefore spent.

Further, the judge ruled that the applicants had not demonstrated by evidence or legal arguments why it is just and convenient that the two Orders be granted in light of the claim that a failure to grant the conservatory order would prejudice the public and the public’s interest.

The High Court Judge further underscored that the applicants failed to demonstrate how the public interest is negatively affected by the disbursement of funds to the constitutional agencies pursuant to the Appropriation Act 2021; and how the refusal of the conservatory orders would render the Fixed Date Application nugatory.

Consequently, Justice Harnanan refused to grant the conservatory orders sought, and awarded costs in favour of the Attorney General in the sum of $200,000 to be paid by the applicants on or before the hearing of the substantive Fixed Date Application on March 15,  2021.

In the Fixed Date Applications, the applicants are contending that amendments to the Fiscal Management and Accountability Act are unconstitutional. The Notice of Application was filed to maintain the status quo until the contentions in the Fixed Date application are heard, and a decision rendered. 

The constitutional agencies include the Women and General Equality Commission, the Guyana Elections Commission, the Judicial Service Commission, the Office of the Ombudsman, the Public Service and Teaching Service Commissions, the Public Service Appellate Tribunal, the Public Procurement Commission, the Ethnic Relations Commission, the Indigenous Peoples Commission, Parliament Office, the Rights of the Child Commission, the Chambers of the Director of Public Prosecutions, the Supreme Court of Judicature, and the Office of the Auditor-General.

 Apart from Mahipaul and McDonald, the other applicants in this matter are Allan Munroe, Chairman of the Teaching Service Commission; Clinton Conway, Member of the Police Service Commission; Michael Somersall, Chairman of the Public Service Commission; Dawn Gardner, First Vice President of the Guyana Public Service Union and the Police Service Commission.