Challenge to NRF Act: Judge calls hearing to address allegations levelled by Opposition

Ahead of the September 12 oral arguments in the APNU/AFC challenge to the passage of the Natural Resource Fund (NRF) Act, High Court Judge Navindra Singh on Wednesday called a hearing to address what he termed a material dispute in the facts.
Guyana Times understands that, at the hearing, Justice Singh pointed the parties to paragraphs 32 a and 42 of Opposition Chief Whip Christopher Jones’s affidavit, in which he alleged that House Speaker Manzoor Nadir deprived Opposition Parliamentarians of participating in debates on the NRF Bill.

With this considered a serious allegation, and the case being one of national importance, Justice Singh instructed the parties that they will meet again on July 7 to draft a joint statement of agreed facts. Arguments on this preliminary issue are fixed for July 15.
At a previous hearing, Attorney General Anil Nandlall, SC, had asked the court to dismiss the case filed by Jones and Trade Unionist Norris Witter on the ground that it is an abuse of the court process. The duo argued that, due to the absence of the parliamentary Mace, the most significant symbol in the National Assembly, and some members not being seated, the NRF Act cannot be regarded as being lawfully passed.
On the night of December 29, 2021, Opposition Members of Parliament (MP) had dislodged the Mace from its position at the House Clerk’s desk in an attempt to prevent the NRF Bill from being passed. Nandlall, Finance Minister Dr Ashni Singh, the House Speaker, and Clerk of the National Assembly Sherlock Isaacs have been listed as respondents.

Replica Mace
At one point in the proceedings, the Speaker’s Personal Assistant was seen latching himself on to 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.
The Speaker of the National Assembly 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.

No relevance
In his Affidavit in Defence, Nandlall, in urging the court to dismiss the case, contended that it is an abuse of the court’s process, as it is without any legal basis. 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 of Guyana.
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, the Mace has “no relevance and place” in the exercise of Parliament’s constitutional power and authority to make laws, and that it was the Opposition Parliamentarians who chose not to participate in the debates.

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 submitted 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 NRF 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.

Manifesto promise
But Nandlall said 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, too, that the Bill received widespread national consultations. To support his argument, he reminded that the legislation was a promise contained in his party’s 2020 National Elections manifest – a document he has already tendered as evidence.
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.

Replenish
Since the passage of the legislation last December, the Government has gone on to establish the Natural Resource Fund Board. Earlier this month, 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.