Attorney-at-law Hugh Wildman is contending that the Government's move to draw down $45 billion from the National Housing Trust (NHT) over the next four years to support its fiscal initiatives is unconstitutional.
The attorney argues that the funds are the property of the depositors under the NHT Act, and so the Government cannot pass a law, whether primary or subsidiary legislation, to take funds from NHT contributors.
NHT Chairman Easton Douglas has argued that the Public Bodies and Management Accountability Act gives the minister of finance authority to require the NHT to make financial contributions in support of the Government's fiscal initiatives.
"The trust is a statutory body and as a consequence falls within the definition of a public body under the Public Bodies Management and Accountability Act (PBMAA). Under Section 4(5) of the PBMAA, and in accordance with the Public Bodies Financial Distribution Regulations 2012, the minister of finance has the power to legally require the NHT to make a financial contribution in support of Government's fiscal initiatives," Douglas said in a media release late last week.
The NHT chairman has also said that in making the commitment, "the NHT is guided by the opinion of the solicitor general".
But Wildman, who is also a legal consultant to the lobby Citizens' Action for Principle and Integrity, argued the NHT chairman has been ill-advised. He said the PBMAA deals only with public companies not established under a trust.
Wildman said only contributors can consent to the use of NHT funds in this regard.
"It is a constitutional matter, yes, because the funds that the housing trust holds on behalf of depositors are private funds it's holding on behalf of the contributors and those funds cannot be taken by the Government," Wildman argued.
"And they can't pass a law to take away those funds. Any such law will be ultra vires [of] both the parent act and the Constitution of Jamaica," he maintained.
"So, Mr Douglas is on the wrong road and I wonder if he has been advised by both the solicitor general and the attorney general because these are fundamental principles of law."
He said the chairman could be held liable if the funds are not used in accordance with the law.
Wildman acknowledged that although previous administrations have dipped into the NHT's coffers to support government initiatives in the past, the action was not legal.
"If it was done before, it was wrong and was illegal and should not be allowed to happen again," he said.