Govt, Opposition battle in almost 5 hours of arguments on NRF Act’s legality

…Ramjattan experiences ‘memory lapse’ during AG cross-examination
…had to rely on video footage

Lawyers for the Government and Opposition battled for nearly five hours on if the controversial Natural Resource Fund (NRF) Act was legally passed by the National Assembly last December, as the civil trial commenced on Monday before Justice Navindra Singh at the Demerara High Court.

Opposition Chief Whip Christopher Jones and Trade Unionist Norris Witter, earlier this year, filed a Fixed Date Application which was converted to a Statement of Claim by Justice Singh, arguing that due to the absence of the parliamentary Mace – the most significant symbol in the National Assembly and some members not being 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 and protested in an attempt to prevent the Natural Resource Fund Bill from being passed.

Trial proceedings
Of the three witnesses Jones and Witter (the claimants) intend to call, two of them testified on Monday. They included Opposition parliamentarian and Attorney-at-Law Khemraj Ramjattan and Witter, himself. Jones, the final witness, will testify when the trial resumes in November.

Ramjattan was the first to take the witness stand in the trial which commenced minutes before 10:00h. Based on the contents of his witness statement, he was cross-examined by Attorney General Anil Nandlall, SC, who asked him a series of questions, including whether his fellow Opposition parliamentarians were blowing whistles in the National Assembly.
Ramjattan did admit that some APNU/AFC Members of Parliament (MPs) blew whistles, walked around, and were not in their seats because they were not in support of the Bill.
Since objections raised by Opposition MPs to the Bill were ignored by the Speaker, Ramjattan, the Leader of the AFC, said that his colleagues resorted to behaving in that manner.
In response to certain questions put to him by Nandlall, Ramjattan either replied that he could not recall or gave an indirect response, and therefore relied on the video recordings of the events that happened on that night. Those recordings have been tendered as exhibits.
During the afternoon session, Witter was called to testify but several objections were raised by Nandlall concerning what was deposed in his witness statement. To amplify his objections, the Attorney General argued that most of what is stated in Witter’s statement amounts to hearsay evidence and is consequently inadmissible. Senior Counsel Roysdale Forde, Witter’s and Jones’s lawyer, however, asked that Witter’s evidence be relied on to prove the truth of the matters asserted. But Justice Singh upheld Nandlall’s objections, stopped Witter’s testimony, and adjourned the trial. The trade unionist will continue his testimony on November 8, while Jones will begin his testimony the next day. Nandlall has asked the Judge to dismiss the challenge.
Replica Mace
At one point in the National Assembly 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.
However, the Opposition’s protest and its mounting calls for the Bill to be sent to a Special Select Committee had no effect as the Government passed the Bill.
House Speaker Nadir is, however, adamant that the NRF Act 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 contended that the claim 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 claim, 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 NRF 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.

Manifesto promise
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.

Replenish
Since the passage of the legislature last December, the Government has gone on to establish the Natural Resource Fund Board. Following parliamentary approval, the Government has made two withdrawals from the fund amounting to $83.3 billion which were transferred to the Consolidated Fund to finance national development priorities.
This sum, which was taken out following parliamentary approval, has been transferred to the Consolidated Fund to finance national development priorities.
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 Dr Ashni Singh, 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.
The defendants in the claim are the Attorney General, Finance Minister, House Speaker, Clerk of the National Assembly, Sherlock Isaacs, and the Parliament Office.
The Government has said that the NRF Act will ensure the security, transparency, and accountability that Guyanese need in order to benefit from the oil and gas revenues.
The law provides for a governance structure of how these monies will be used with continuous public disclosures, audits, and parliamentary approvals. (G1)