Article 13 not enforceable; govt doesn’t have to consult with anyone- Nandlall – Demerara Waves Online News- Guyana
# Article 13 not enforceable; govt doesn’t have to consult with anyone- Nandlall
by Written By Denis Chabrol
Tuesday, 5 April 2022, 23:32
Attorney General Anil Nandlall.
Last Updated on Tuesday, 5 April 2022, 23:32 by Written By Denis Chabrol
Attorney General Anil Nandlall.
Attorney General Anil Nandlall on Tuesday said Article 13 of Guyana’s constitution, whose objective is for Guyanese to participate in making decisions that directly affect their well-being , cannot be enforced and there is no law compelling the government to consult anyone.
“In my view, and perhaps now we will have it determined, in my view Article 13 is not an enforceable right. It is declaratory of an aspiration,” he said on his weekly Social Media programme.
Article 13 states: “The principal objective of the political system of the State is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens, and their organisations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.”
Opposition Chief Whip, Christopher Jones and trade unionist Norris Witter have cited Article 13 in challenging the passage of the Natural Resource Fund legislation on December 29, 2021 on several grounds including the failure to consult before the Bill had been tabled in the National Assembly. A number of civil society organisations and the opposition had failed in their efforts to convince government to stall the tabling and passage of the wealth fund legislation to allow for proper consultation.
The Attorney General, however, said there was nothing that compelled the government to consult with anyone more so since it enjoyed a simple majority in the National Assembly to pass legislation. “Consultation is an important component of good governance. It’s a prerequisite in a democracy. There are good values but you are dealing here with law. There is no legal obligation on a government to consult,” said Mr. Nandlall. He questioned the now opposition A Partnership for National Unity+Alliance For Change failure to consult with the People’s Progressive Party before the passage of the Natural Resource Fund Bill in 2019.
On the other hand, Mr. Nandlall said the PPP administration had consulted, but “perhaps we did not consult that group” before introducing the new Fund legislation to the House. “I don’t know that any government has to consult any group or all the groups,” he added.
APNU+AFC hopes to convince the High Court to scrap the Natural Resource Fund Act on the grounds that the Speaker’s Mace was not before the Speaker at the time and that the opposition and civil society had not been consulted before.
On 29 December 2021, the National Assembly passed the Natural Resource Fund (NRF) Bill without debate, after a chaotic scene erupted in the Assembly as Opposition Members of Parliament (MPs) vehemently opposed the related Bill being considered. This was indeed a most unfortunate occurrence, considering the importance of this legislation relating to the overall management of as well as transparency and accountability for Guyana’s oil revenues. The following day, the President assented to the Bill while the Minister of Finance signed the commencement Order the next day to bring the Act into operation.
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Most of the contents of the NRF Act were extracted from the 2019 legislation, with the following notable changes:
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the First Schedule that outlined the maximum amount that can be withdrawn annually from the Fund, with a new Schedule. The new Schedule was revised in February 2024 to increase the ceiling for withdrawals, despite the requirement for the Minister to conduct not less than every five years, a review of its implementation and
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submit a report to the Assembly.
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The maximum that may be withdrawn from the Fund in any fiscal year is not to exceed the total withdrawal from the Fund approved by the
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and must be in accordance with the ceiling set in the First Schedule plus any amount required for
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. The ceiling for
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in any fiscal
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into the Fund in
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immediately preceding fiscal year,
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All withdrawals are to be deposited in the Consolidated Fund to be used to finance the National Budget, or any Supplementary Estimate in the event of a major national disaster.
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By Section 20, the annual budget proposal must include: (i) an estimate of petroleum revenues, deposits, withdrawals and rate of return on investments for each of the next four fiscal years; and (ii) a comparison of actual withdrawals approved by the Assembly for the last three fiscal years. For emergency financing, the Budget is to include two detailed reports describing: (i) the major natural disaster and its impact on the environment and the population of Guyana; and (ii) why the withdrawal is needed, the projects it will be used to finance and how those projects will ameliorate the effects of the disaster. The same applies to emergency financing via Supplementary Estimates, with the inclusion of a table showing for the current fiscal year the withdrawal request and the withdrawal from the Fund in the annual budget.
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Section 16(2) of the Act specifically states that the NRF withdrawals should only be used for (i) national development priorities, including any initiative aimed at realizing an inclusive green economy; and (ii) essential projects that are directly related to ameliorating the effects of a major natural disaster. (Emphasis added.) The use of the word “only” suggests that the proposed expenditure on national development priorities need to be clearly identified. How else will legislators and the public at large be able to ascertain whether the withdrawals and related expenditure are compliance with Section 16(2) as regards the projects to be financed that are in the nature of national development priorities?
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the Investment Mandate after seeking the written advice of the Investment Committee. In rendering that advice, the Committee is required
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By Section 32, the NRF Board is required to the submit to the Minister an annual report within 30 days of the receipt of the audited accounts of the Fund from the Auditor General. The report is to contain, among others, (i) the audited accounts and report of the Auditor General; (ii) details of deposits and withdrawals; and (iii) comparison of the amounts approved for withdrawal with the actual amounts withdrawn. The Minister must then present the report to the National Assembly as soon as possible but not later than 30 days after its receipt from the Board. Section 33 requires the report to be laid in the Assembly and published on the Ministry’s website.
Guyana’s opposition is calling on the government to make public its agreement with the United States allowing the South American nation to receive people deported from the U.S., arguing that Parliament and the wider public should be able to examine the terms of the arrangement.
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The demand comes days after Guyana received its first six deportees under
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. The group,
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Cuba and Afghanistan
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arrived in the country on September
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4 after being vetted by Guyanese
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Guyana’s Foreign Secretary
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Opposition lawmakers, however, are pressing the administration of President Irfaan Ali for greater clarity about the agreement, including the obligations undertaken by Guyana, the safeguards in place for the deportees and any conditions attached to the country’s decision to participate.
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The opposition’s push for publication therefore places the government’s handling of the agreement under renewed scrutiny, particularly as Guyana seeks to balance its growing relationship with Washington against questions of national sovereignty, immigration policy and public accountability.
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The controversy also places Guyana alongside several other Caribbean Community countries that have agreed to receive small numbers of U.S. deportees under third-country arrangements. For Guyana, the immediate question is whether the full terms of its agreement with Washington will be made available to Parliament and the public as the country begins implementing the one-year programme.