Furore continues over the change to the funding process for the judiciary, and former Attorney General Anil Nandlall is now contending that the Financial Management and Accountability (FMAA) Amendment Act of 2015 is unconstitutional.
Former AG Anil Nandlall
Nandlall pointed to recent comments from Finance Minister Winston Jordan that section three, 80B (7) of the amendment makes it necessary for alterations to the budget of constitutional agencies to be approved by the National Assembly. According to Nandlall in a statement on Friday, this contravenes Article 122A of the constitution.
“This emphatic assertion by the Minister as well as (the) Section of the FMA (Amendment) Act 2015 upon which he relies are in palpable contravention of the clear and expressed language of Article 122A (2) of the Constitution.”
Nandlall said that Article 122 provides that: “all Courts shall be administratively autonomous, and shall be funded by a direct charge upon the Consolidated Fund…” According to Nandlall, Article 122 sets out that no parliamentary approval is required for financing the judiciary.
“Therefore, Section 3 (b) of the FMA Amendment Act 2015 is unconstitutional and void to the extent of its inconsistency with the Constitution by virtue of Article 8 of the Constitution.”
He quoted Article 8, which states: “This Constitution is the supreme law of Guyana, and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
“It is instructive that I reiterate that prior to May 2015, the fiscal, constitutional and procedural architecture under which the Judiciary was financed remained virtually unchanged since our Independence Constitution (was) promulgated on May 26, 1966. That architecture was cast in that mould (and) gifted to us by Her Majesty’s Government and patterned against a model conceived and designed by the constitutional experts at Westminster, which was promulgated in the newly created independent States throughout Her Majesty’s Commonwealth.”
According to the former Attorney General, this architecture still remains unchanged in many of the 52 States of the Commonwealth. “From all accounts, it has functioned satisfactorily and has become a fundamental component of that network of mechanisms designed to guarantee judicial independence in these territories,” he explained.
Nandlall noted that the change is captured in the Fiscal Management and Accountability (Amendment) Act of 2015, No. 4 of 2015. He observed that the Act was assented to by President David Granger on the 5th August 2015.
“It is instructive to note that this Act was debated and passed in the National Assembly during the period that the PPP was absent from the House. From all indications, our presence and objections would not have mattered,” Nandlall contended.
The FMAA was passed in 2015, but its provisions have been opposed by the Opposition. In response to a recent statement from Nandlall on the matter, Jordan had stated in a missive that the new system would allow greater transparency.
“What obtains now, therefore, is a more transparent system, where both the request made and the proposed recommendations are shared with the National Assembly,” Jordan had said.
He had added: “It is the National Assembly, not the Minister of Finance, which approves the final allocation to constitutional agencies, and has the power to vary these proposals up or down before approval.”
