Introduction
Chief Justice acting Mr. Ian Chang last Friday gave his decision on the case brought by Mr. David Granger, Leader of the Opposition in the matter concerning the spending of money on programmes contained in the 2014 Budget expressly disapproved by the National Assembly. Two men not unknown to take their professional image very seriously, Attorney General Mr. Anil Nandlall and the shadow Attorney General have been on television both claiming victory! Yet, notwithstanding the highly technical discussion on questions about declaratory orders as opposed to conservatory orders, some things are very clear:
1. That the Minister of Finance acted in violation of the Constitution and the Fiscal Management and Accountability in spending the sum of $4,553 million for purposes specifically disapproved by the National Assembly. Note that this spending was up to June 16, 2014
2. That the Court has no jurisdiction to restrict any authority granted on the executive by the Constitution or an Act of Parliament since “to do so would be to violate the doctrine of the separation of powers which indubitably inheres in the Constitution of Guyana.”
3. That the Minister cannot use one article of the Constitution to engage in spending that is disapproved under any other article.
4. That support of expenditure in 2012 and 2013 in similar circumstances did not mean that no court challenge could be brought in respect of 2014.
5. That the breach of constitutional authority regarding expenditure in 2014 is not a proper basis to fear that the government would exceed the limits of their authority in respect of any other period.
6. That the Court is more concerned about form rather than substance. There can be no other explanation for the decision by the court to deny on procedural grounds an application in respect of expenditure on disapproved programmes for 2014 that the court considers to be in violation of article 219 (3) of the Constitution and the Fiscal Management and Accountability Act 2003.
7. That having found that the Minister of Finance violated the Constitution and the law the court passed the buck regarding any cure or sanction by ruling that those are matters for the internal affairs of the National Assembly!
Helpful yet troubling
The case brought by Mr. David Granger in his capacity as Leader of the Opposition has been both helpful and troubling. Mr. Granger had proof since mid-June 2014, in the form of Financial Paper I of 2014, that the Minister of Finance had openly defied the National Assembly and the Appropriation Act of 2014. He must have known that the defiance was not a single act but a continuous act as the Minister was continuing to spend further sums on the disapproved programmes even as he presented Financial Paper No. 1.
It took Mr. Granger close to six months to bring an action. The gravity of that delay has been exacerbated by the prorogation of the National Assembly which has now gone on well beyond the six months since the end of the last session, allowed by the Constitution. Not only was unlawful spending taking place post June 16, 2014 but it is almost certain that unconstitutional and unlawful spending is taking place in 2015 in violation of another article of the Constitution. The prorogation, then dissolution, then elections, then four months allowed for the 2015 Budget means that no one will know the extent of the illegalities until later this year.
The court with all its judicial niceties commented adversely on the delay in bringing the action drawing attention to the fact that the action was brought on December 11, 2014 in respect of 2014. See pages 17 and 35 of Justice Chang’s decision.
2015 expenditure
In an article posted on my blog on January 11, 2015 under the caption Spending by government tests the limits of the Constitution – I drew attention to the constitutional and legal restrictions on spending in the first four months of 2015 which is restricted for each month in respect of each budget agency “to one-twelfth of the amount that was expended by that budget agency in the immediately preceding fiscal year…”
A further restriction imposed by the FMAA is that the Minister cannot issue a drawing right in relation to a subject matter or for a purpose for which there was no appropriation in the immediately preceding fiscal year.
Sanction
In relation to point 7 mentioned above, it seems that the court expects the National Assembly to decide whether to give legitimacy and legality to the Minister’s action by passing a Supplementary Appropriation Act, thus taking the Minister off the hook, or leaving the Consolidated Fund with a massive hole of $4,566 million up to June 16, 2014 and several million dollars more to December 31, 2014. The court must be aware that once the National Assembly comes to an end the Minister cannot even be rapped on his knuckles.
The court it seems did not acknowledge or consider sections 48 and 49 of the Fiscal Management and Accountability Act which enjoin the Minister of Finance from misusing, misapplying, or improperly disposing of public moneys and makes him liable where any loss occurs as a result of misconduct or through deliberate or serious disregard of reasonable standards of care.
It is my view that the Minister of Finance cannot escape responsibility by reliance on Nandlall whose competence and judgment have been shown to be seriously lacking when it comes to constitutional issues. Despite calls by the political opposition and civil society for Nandlall’s removal or resignation when he admitted, or was party to a slew of illegalities he stayed on. Now that the court has found that at least ten billion dollars of public funds have been spent unlawfully by the Government based on his poor advice, Nandlall surely disqualifies himself as an Attorney General.
He has proved right all those persons who have expressed doubts about his qualification, maturity and fitness for such high office. But he alone cannot carry all the responsibility and take all the blame. The Minister of Finance is a brilliant man and must be held accountable for his disregard for the Constitution and the law. It does nothing for the development and respect for the rule of law that any person would so carelessly ignores the Constitution and the law. His judgment having been proved so lacking and costly, his continued role as a Minister of Finance is not something this country can afford.
The useless and dangerous Audit Office
Finally there is the Audit Office which has functioned more as a protector and concealer of the financial improprieties of the Government than as a watchdog for the people. I hold the entire top brass of the Audit Office as complicit in the financial improprieties of this Government. Let us not for one moment think that the spending of the $4.6 billion is all that has gone wrong.
I had pointed out that billions of dollars had been transferred from dormant accounts to the Consolidated Fund in breach of the law. The Audit Office never addressed that. Hundreds of millions were spent to develop Pradoville 2 but the Audit Office has never addressed that abomination. And these are only two examples.
The Auditor General holds no professional qualification and should never have been confirmed in that position in the first place. He is a danger to the public purse and should resign. Any qualified accountant from the Audit Office who subscribes to any ethical guide or code must also resign.
Conclusion
This decision has confirmed what has been public knowledge as exposed by commentators like Anand Goolsarran and Raymond Gaskin and the two major dailies. It would be the worst form of lawlessness for the Government to continue spending in violation of the Constitution even though one is not assured by the brashness of Minister Benn who said said that he would continue spending illegally and would be prepared to serve time.
The court also took a dig at the claim by Mr. Granger that prorogation leads to lack of parliamentary oversight and noted – and I am paraphrasing – that the PNC and the PPP are responsible for this situation having failed to address in in the constitutional reform that took place under the Herdmanston Agreement. To use Chang’s words: “This court cannot do that which 2/3 majority of all the elected members of the National Assembly has not seen it fit to do.”