AG asks High Court to dismiss case challenging passage of NRF Act
…Opposition wants money withdrawn returned to Fund
Attorney General Anil Nandlall, SC, has asked the High Court to dismiss the case filed by Opposition Chief Whip Christopher Jones and Trade Unionist Norris Witter, which challenges the passage of the controversial Natural Resource Fund (NRF) Act last December.
Before Justice Navindra Singh, the duo argued that due to the absence of the parliamentary Mace – the most significant symbol in the National Assembly and some members not seated, the Act cannot be regarded as being lawfully passed.
On the night of December 29, 2021, Members of the A Partnership for National Unity/Alliance For Change (APNU/AFC) had dislodged the Mace from its position at the House Clerk’s desk in an attempt to prevent the Natural Resource Fund Bill from being passed. During a brief hearing, Justice Singh fixed timelines by when the parties must file submissions and replies.
He will hear oral arguments on September 12. The Attorney General, Finance Minister Dr Ashni Singh, Speaker of the National Assembly Manzoor Nadir, and Clerk of the National Assembly Sherlock Isaacs have been listed as respondents.
At one point in the proceedings, the Speaker’s Personal Assistant was seen latching onto the Mace while lying on the floor in an attempt to secure it, while the Opposition parliamentarians stood by hurling racial slurs and taunts at him. But despite the Opposition’s protest and its mounting calls for the Bill to be sent to a Special Select Committee, the Government went ahead and passed it.
House Speaker Manzoor Nadir is, however, adamant that the Bill was lawfully passed, noting that a replica Mace was in place. He had explained that almost all Parliaments in the Westminster System have two Maces in case one is not being found or is stolen.
In his Affidavit in Defence, Nandlall contended that the action is an abuse of the court process and without any legal basis. In light of this, he has urged the court to dismiss the matter. According to the Attorney General, there is no principle known to the law, neither does the Constitution nor the Standing Orders of the National Assembly require that the Mace must be present and in place for Parliament to exercise its constitutional power to make laws for the peace, order, and good governance.
He argued that, whether the Mace is in place or not, or whether an instrument can be used as a Mace, the purpose of the Mace and matters connected to Parliament are matters over which the High Court has no jurisdiction, as they constitute procedural matters of Parliament over which the Parliament has exclusive jurisdiction under Article 165 of the Constitution. In any event, Nandlall argued, too, that the Mace has “no relevance and place” in the exercise of Parliament’s constitutional power and authority to make laws.
Excluded from consultations
Jones and Witter, in their Fixed Date Application (FDA), are seeking a number of declarations including one that the conduct of the business of the House without the Mace and the later passage of the Bill were illegal. They argued that this is contrary to constitutional values of the rule of law, democracy, inclusive governance, and the Standing Orders of the National Assembly.
The Opposition’s position is that civil society bodies were excluded from consultations on the Bill.
Witter argued that under Article 154A of the Constitution and Article 25 of the Covenant of Civil and Political Rights, he has a fundamental right to political participation in the conduct of public affairs. He, however, argued that this right was violated with the passage of the Bill. In light of this, the Trade Unionist is asking the court to declare that pursuant to Article 154A, the Government in formulating an NRF policy, had a responsibility to engage in consultation.
But Nandlall submitted that a lack of consultation does not in any manner affect the law power and authority of Parliament. He deposed, “It will be contended that the debates among the elected representatives of the people in the National Assembly which is a component of the legislative process constitutes consultation.” He said that the Natural Resource Fund Bill received widespread national consultations. To support his argument, he reminded that the legislation was a promise contained in his party’s manifesto for the 2020 National Elections – a document he has included as an exhibit. He said that the manifesto itself was a product of five years of public consultations from 2015 to 2020, across all 10 regions, including a grand public consultation held at New Thriving Restaurant, Providence, on February 17, 2019.
For the aforementioned reasons, the Attorney General submitted that he maintains “most resolutely” that the Natural Resource Fund Act was lawfully, validly, and properly passed, and received the due assent of President Dr Irfaan Ali in accordance with the Constitution.
Since the passage of the legislature last December, the Government has gone on to establish the Natural Resource Fund Board. Earlier this week, the Finance Minister announced the Government’s first withdrawal of $41.7 billion from the Natural Resource Fund.
This sum, which was taken out following parliamentary approval, has been transferred to the Consolidated Fund to finance national development priorities, Dr Singh noted.
However, Jones and Witter are further asking the High Court to declare null, void and of no effect, all actions taken by anyone, including the Minister of Finance, pursuant to the passage of the Bill, or the Constitution of any Board under the NRF. They are also seeking orders necessary to ensure that the NRF is replenished to the extent of all sums disbursed from it. (G1)