Opposition loses case as High Court upholds validity of NRF Act

Guyana’s High Court on Monday upheld the validity of the Natural Resource Fund (NRF) Act, which was the subject of litigation brought against the Government by the main parliamentary Opposition. The law was passed in December 2021 to ensure the effective and efficient management of the country’s oil wealth, amid much protest from the Opposition.

On the night of December 29, 2021, Opposition Members of Parliament dislodged the Parliamentary Mace from its position at the desk of the Clerk of the National Assembly, and protested in an attempt to prevent the Natural Resource Fund Bill from being passed.
Notwithstanding, the Bill was passed in the House and assented by President Dr Irfaan Ali; it, therefore, became a law that can be enforced by the Government.
As a result, Opposition Chief Whip Christopher Jones and Trade Unionist Norris Witter filed legal proceedings against the Government in April 2022, contending that due to the absence of the Parliamentary Mace – the most significant symbol in the National Assembly – and because some members of the House had not been seated, the NRF Act cannot be regarded as being lawfully passed.

Nothing more than a relic
However, in his ruling on Monday, Justice Navindra Singh noted that the presence, absence, or use of the Mace in the National Assembly is not provided for in the Constitution or Laws of Guyana.
“It is clear from the evidence that the Mace is nothing more than a relic intended only to be symbolic existence in the National Assembly. It is illogical to believe that the presence or absence of a length of metal can determine the legitimacy of acts done by persons elected by the citizens of the country pursuant to their elected duties,” Justice Singh said.
It is preposterous to contend that the legislative power of the nation can be halted by the abhorrent and deplorable actions of a few miscreants,” he added.
The first-named respondent, Attorney General Anil Nandlall’s argument that whether or not the Mace is in place, 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 those matters constitute procedural matters of Parliament, over which the Parliament has exclusive jurisdiction under Article 165 of the Constitution, was upheld by the High Court.
House Speaker Manzoor Nadir, the third-named respondent, had contended that the Bill was lawfully passed since a replica Mace was in place. He had said that almost all Parliaments in the Westminster System have two Maces present, in case one is not found, or has been stolen.

Free from judicial intervention
On the issue of whether the holding and/or continuation of the National Assembly on December 29, 2021, beyond the stipulated time without a motion to do so invalidates the passage of the legislation passed during such continuation, Justice Singh reasoned that the National Assembly is one of the three independent arms of the State, the Judiciary and Executive being the other two, and as such, enjoys the right to not have its authority to regulate its own procedure/s impeached or questioned by another arm of the State, in this case, by the Judiciary.
To this end, he pointed out that the National Assembly can, and must be able to conduct its business free from judicial intervention or inquiry so long as its conduct does not run counter to any provisions of the Constitution of the Laws of Guyana.
The Opposition’s argument that civil society bodies were excluded from consultations on the Bill was also rejected. Witter had 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; and that right was violated with the passage of the Bill.
He and Jones had submitted that Article 13 of the Constitution gave members of the public a constitutional right to engage in consultation on the NRF Bill before it was enacted.
But the Judge concluded that it is “illogical to believe that the same Constitution that set up a system of governance which provides for a Legislature to debate and enact laws, which Legislature is to comprise of elected representatives, would at the same time demand that each citizen essentially become a representative”, finding that Articles 13 and 154A do not require the National Assembly to consult with stakeholders and every citizen before enacting laws.
During the trial, Nandlall had contended that the debates among the elected representatives of the people in the National Assembly, which is a component of the legislative process, constitute consultation. He had said the Natural Resource Fund Bill received widespread national consultation, and to support his argument, he reminded that the legislation was a promise contained in his party’s manifesto for the 2020 National Elections which was exhibited in court.
He had said, too, that the manifesto itself was a product of five years of public consultation, from 2015 to 2020; across all 10 regions, including a grand public consultation held at New Thriving Restaurant at Providence, East Bank Demerara (EBD), on February 17, 2019.
In the circumstances, Justice Singh dismissed Jones’ and Witter’s application “in its entirety” and ordered each of them to pay $250,000 in costs to each of the respondents: Nandlall; Finance Minister Dr Ashni Singh; Nadir; Clerk of the National Assembly, Sherlock Isaacs; and the Parliament Office. Included on the legal team for the respondents were the Attorney General; Solicitor General Nigel Hawke; Deputy Solicitor General Deborah Kumar; Assistant Solicitor General Shoshanna Lall and Attorneys-at-Law Sase Gunraj and Kamal Ramkarran.
Jones and Witter were represented by Opposition-aligned lawyer Roysdale Forde, SC, and Canada-based Guyanese attorney, Selwyn Pieters.

Reactions
Nandlall, while speaking with reporters on the corridor of the Demerara High Court, said that such a ruling was expected given the frivolous and vexatious application mounted by the Opposition. In applauding Monday’s ruling, the Attorney General noted that this case is just one of the many times the Opposition has gone and asked a court of law to endorse its wrongs.
“I expected the ruling to go this way. This is another demonstration that the Opposition is living in an alternate reality. They [the Opposition] asked the court to confirm their vulgarity. Of course, they did not advance many legal arguments because hardly there exist any. The court rejected all their arguments and upheld our submissions…”
Meanwhile, Forde expressed disappointment with the ruling and signalled that an appeal might be forthcoming after he consults with his clients. He shared, “We are disappointed with the judgement. This case deals with a number of very important constitutional issues and I will consult with my clients, with possibly their consent, with a view of appealing…”
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.
That law provides for a governance structure on how money in the Natural Resource Fund would be used, with continuous public disclosures, audits, and parliamentary approvals.
Since passage of that legislation, Government has gone on to establish the Natural Resource Fund Board. Following parliamentary approval, the Government has made several withdrawals from the fund, amounting to tens of billions of dollars, which were transferred to the Consolidated Fund to finance national development priorities.
Jones and Witter were seeking a number of reliefs, including an order that the Natural Resource Fund be replenished to the extent of all sums disbursed from it. (G1)