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Doctrine of necessity cannot justify failure to circulate budget proposal for Audit Office- Patterson

Opposition Member of Parliament and former Public Infrastructure Minister David Patterson argues that the Government’s failure to circulate the budget proposals for the Audit Office, a constitutional agency to the APNU/AFC cannot be justified by the doctrine of necessity, or the need to act in any emergency as is being contended by Attorney General Anil Nandlall, SC.

Patterson is therefore asking the High Court for a declaration that the consideration and approval of budget proposals for the Audit Office by the National Assembly on September 01, 2020, were done in breach of the Fiscal Management and Accountability Act (FMAA).

The Attorney General, however, contends that the failure to circulate the budget proposals for the constitutional agency is justified by the doctrine of necessity. Putting this into context, Nandlall explained that Guyana was in a constitutional crisis following the successful passage of a noconfidence motion against the APNU/AFC which refused to demit office even after a ruling by the Caribbean Court of Justice.

This, he added, was further compounded by the five-monthlong March 2020 elections period which was marred with a series of litigations. Moreover, he said that the onset of the fatal COVID -19 pandemic brought a heightened demand for health care services and brought the economy to a grinding halt.

According to Nandlall, this resulted in Guyana’s economy and productive sectors plummeting and the effective functioning of the country became almost impossible. So, when the PPP/C took Government in August 2020, Nandlall said it was an absolute necessity to safeguard the continuation of the effective functioning of the country and there was no other course of action than the passing of an emergency budget.

In passing the 2020 emergency budget, he noted that the Government did not impair the just rights of citizens under the Constitution but rather sought to safeguard their health and safety and to provide much-needed resources and services.

There was clearly no necessity for the unwarranted and flagrant breach of the law. There is no basis for the reliance and invocation of the doctrine of necessity, or the need to act in any emergency as Article 219 of the Constitution provides for the situation which the respondents’ claim was an emergency. The claim of an emergency was clearly contrived,” Patterson argues.

Patterson says the above constitutional provision empowers Finance Minister to make withdrawals of such sums from Consolidated Fund as may be necessary for meeting the expenditure of the Public Services until the expiry of a period of time months commencing with the date on which the National Assembly first meets after the dissolution.

Thus, the [Finance] Minister acted contrary to law, and in breach of the Fiscal Management and Accountability Act when he contemptuously disregarded the provisions of the Fiscal Management and Accountability Act,” he further argues. He, therefore, submits that the matter of budgeting of public expenditure, the budget proposals and or submissions of the constitutional agencies are matters of great public and constitutional importance.

Nandlall is asking the court to decline Patterson’s request since it would be of no useful purpose at this stage since the funds allocated under the 2020 emergency budget were expended and the life of that budget expired in December 2020. The Attorney General contends that the issues raised in Patterson’s application are now academic.

But the former APNU/AFC Government minister argues that the case is not academic, and as such the orders he seeks should be granted by the court along with costs.

He submits that no expenditure of any sum of money can lawfully occur except in accordance with the Constitution and terms approved by the FMAA.  On this basis, Patterson contends “the purported approval of the budget proposals of constitutional agencies are in breach” of the FMAA which renders it without legal validity.

It is submitted that the submissions made by the Attorney General that this Court does not have jurisdiction to enquire into whether the Minister of Finance complied with the law is misconceived.” Apart from the Attorney General, Patterson has also named Finance Minister Dr. Ashni Singh as a respondent in the matter which is before the High Court in Demerara.