Category: Letters to the editor

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Contrary to Singh, Nandlall and Luncheon’s statements Chief Justice’s decision was not final in the Budget cuts case

The Attorney General, the Minister of Finance and the Head of the Presidential Secretariat have been busy distorting the decision in the Budget cuts case to mislead the public. They appear to use their flawed interpretation as the basis for continuing payments to party comrades like Mr Reepu Daman Persaud, Ms Gail Teixeira and Mr Kwame McCoy, in violation of a vote by the National Assembly.

On the day Mr Ian Chang, Chief Justice (ag) delivered, to use his own words, “his views,” the Attorney General Mr Anil Nandlall went from the court, via the Office of the President, to NCN to shout victory.

And in the 2012 mid-year report Finance Minister Dr Ashni Singh presented recently, he said that “The [National] Assembly was later deemed by the Courts of Guyana to have acted outside its constitutional remit in inflicting those cuts to the budget.”
Not to be left out, Dr Luncheon was quoted in the press on September 7, 2012 as saying that “the $1 that was approved by the opposition for the various agencies was totally inconsistent with the constitutional provision as ruled by the Chief Justice.”

Let us turn to the Chief Justice’s decision. He rejected the application of the Attorney General and denied the Minister of Finance the “liberty” to make advances/ withdrawals from the Consolidated Fund to restore the $21 billion 2012 budget cuts, except for the sum of $99,000,000 for the ERC. The reason for restoring the amount for the ERC, according to the Chief Justice, is that it is a constitutional body subject to a direct charge on the Consolidated Fund. Accordingly, its budget allocation was not subject to a vote of the National Assembly.

And let us be reminded that the Chief Justice concluded his decision with the words that the matter brought by Mr Nandlall is in its “preliminary stage” and that “the views expressed at this juncture are not final.” The misinterpretation suggests that the three do not have any regard for the truth, respect for the court, or deference for the National Assembly, the only body with the power over the spending of public funds. We may be tempted to discount Mr Nandlall and Dr Luncheon as ineffective political spinners. Not so Dr Singh. He controls the public purse of Guyana and the records show that he has not been unwilling to play around with the Contingencies Fund and the dormant bank accounts to the tune of billions of dollars.

So when Dr Luncheon announces in last month that “no one lost their jobs” and that “Contingency funds were approved and funds made available belatedly but still available to meet the wages and salaries of the contract workers [at OP].” it is time to get worried. Because, if that is so, the Minister of Finance is in violation of not one but two Acts – his own amended 2012 Budget Act and the Fiscal Management and Account-ability Act, under the pretext of a misrepresentation of the court’s decision.

The question now is whether, after a prolonged break, the political opposition can muster the capacity and the courage to confront with all the powers at their disposal, the continuing lawless manner in which the country’s public funds have been mismanaged and misspent by Dr Singh, assured of a pliant and ineffective Audit Office.

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In the final NCN debate on institutional corruption Ashni Singh committed the same error of which he accused Nagamootoo

In the final NCN debate on institutional corruption broadcast recently, Senior Minister of Finance Dr Ashni Singh accused Mr Moses Nagamootoo of the AFC of “pretence,” “misrepresentation,” “opportunism” and “making false charges of corruption” against the PPP/C.

In an attempt to show how far the government has gone to remove the opportunities and possibilities for corruption, the Minister said on the programme that in the case of the tax laws, his government has “removed opportunities for discretion, imposed rigid rules-based system over all aspects of the corporations, rules have been framed for the granting of incentives …” The facts show otherwise.

What makes the Minister’s accusations so contrived is that he could not have forgotten the infamous case of the Ramroop group in which he and Mr Jagdeo rushed to grant illegal tax concessions to the group. And when confronted with the embarrassment of the illegality – which Dr Singh missed not once but thrice – he spearheaded a change in the law to legalise the concessions to the government’s friend. That cannot constitute a rules-based system.

What was ironic about the accusation is that by his false boast of removal of discretions, the Minister committed the same error of which he seeks to accuse Mr Nagamootoo. A tax holiday under the Income Tax (In Aid of Industry) Act is easily the most valuable tax concession available, and its award is substantially discretionary. This is how the relevant section of the Act begins:

“Notwithstanding anything to the contrary contained in the Income Tax Act or the Corporation Tax Act, it is hereby provided that the Minister may grant an exemption from corporation tax…” (emphasis added).

Readers might be aware that by law once an entity is exempt from Corporation Tax, it is also exempt from Property Tax (section 6) and Capital Gains Tax (section 5). These combined concessions can run to ten years and cost the country billions of dollars in lost revenues. Spin it how much one wants, the language and the power are clearly discretionary.

A less known but certainly not inexpensive concession is contained in the Value-Added Tax Act. By regulations made by the same Minister, any supply of goods and services under an investment agreement entered into on behalf of the government is zero-rated. This means that while the entity does not have to charge VAT on its supply of goods and services, it can recover any VAT it pays on its inputs. The Minister responsible for that Act (Dr Singh) has not indicated the criteria, if any, which a company must meet to qualify for an investment agreement or, that it is he who has the final say on whether or not a person qualifies.

And to go back to the tax holidays, the Minister of Finance who confidently makes such statements that “it is a matter of public record” and that this or that person “ought to know,” must himself know that the Investment Act requires him to publish information regarding tax holidays incentives under the Income Tax (In Aid of Industry) Act. Would the Minister say how transparent and compliant the government has been?

To compound the institutional silence and dereliction, the Act also requires the Audit Office to carry out annually a process audit of the concessions and to make a report to the National Assembly “within six months of the end of each of the financial year.” June 2005, 2006, 2007, 2008, 2009, 2010, 2011 and 2012 have come and gone since the Investment Act became law. Would the Minister say for which year any such a report was made to the National Assembly?

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Teixeira’s position was absurd and disgraceful

I was invited to make a keynote address to the UG Students for Social Change on the topic ‘Legislating as a means of Effecting Policy Changes.’ It is not important that the invitation to me did not indicate that there would be four panellists comprising the Government, the PPP/C, the APNU and the AFC. Nor that ‘certain politicians’ had insisted that they would only participate if they were given the same time to speak as I was given.

What is important for the purposes of this letter is that in the course of the question-and-answer session following the presentations, Ms Gail Teixeira, Presidential Advisor on Governance was categorical that her government did not wish to be distracted by copyright laws and was only interested in reducing the cost of school books. Displaying an enormous insensitivity to Guyana’s obligations under the rules of the World Trade Organisation/WIPO; and under the Economic Partnership Agreement with the EU and the Revised Treaty of Chaguaramas, she dismissed authors’ rights as property and questioned why copyright had to last more than a few years.

Even if the governance czar does not know that the rule of law is the first requirement of governance, I had hoped she would understand that her economic and political case could be met by the government contracting for the writing of the required textbooks. The government could then be free to grant the right to any and everyone to copy as they please.

The issue of respect for the intellectual property of writers was strongly supported by Mr Khemraj Ramjattan of the AFC. But I was extremely disappointed that Dr Rupert Roopnaraine, who like Ms Teixeira is a member of the Council of the University of Guyana, did not offer a comment on Ms Teixeira’s absurd and disgraceful position.

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Dangerous fabrication

Please allow me to use your column to highlight a dangerous piece of mischief circulated this past Sunday on the internet (Facebook) by someone using the name Tamara Deokumarie.

The person claims that I made a cheque payment of one hundred and twenty thousand ($120,000) to the Mark Benschop Foundation three days before the Linden protest. The person also claims that I was overheard talking about “things going well at Linden” on the cell-phone.

Of course I knew that no such payment was made or that any such conversation took place. Yet to satisfy myself I reviewed not only cheque but cash payments as well for the entire month of July. It confirms that no payment was made to the Mark Benschop Foundation for any amount.

Whoever, Tamara Deokumarie is, s/he is nothing but a dangerous fabricator and mischief-maker. Her/ his claim about the cell-phone conversation is as imaginary as a cheque payment to the Mark Benschop Foundation.

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The Attorney General completely disregarded the principles and authorities on bias in the matter of Mrs Singh’s position

Attorney General Anil Nandlall’s letter SN ‘The squabble over conflict of interest in the Audit Office is much ado about nothing’ July 13, 2012 refers. Mr. Nandlall accuses those who have taken a position on what he dubs as a “concocted” and “politically inspired” matter involving Dr. Ashni Singh as Minister of Finance and his wife Mrs. Gitanjali Singh of the Audit Office of not subjecting the relevant facts and surrounding circumstances to mature analysis.

I respond to make the following points not because I think Mr. Nandlall’s letter has any validity or merit but because of the position he holds as leader of the Bar of Guyana, and to counteract the mischief his letter created.

1. I wonder if the Attorney General considered the propriety of his public intervention in the matter, citing some weak and discarded legal authorities, while the Institute of Chartered Accountants of Guyana is considering formal complaints over the same issues.

2. If Mr. Nandlall had apprised himself of the relevant facts he would not have misled the country about Mrs. Singh’s service at the Audit Office. She could not and did not commence her career at the Auditor General’s Office in 1992 and worked continuously since then in that office. Mr. Nandlall and his colleagues might wish to believe that everything began in 1992 but the fact is that in 2001/2, Mrs. Singh was Director, Internal Audit at the Georgetown Public Hospital Corporation.

3. And for Mr. Nandlall’s further information, Mrs. Singh left that position because a conflict of interest question arose.

4. For someone who prides himself on accurate and precise language, not once in his several references to Mr. Deodat Sharma did Mr. Nandlall acknowledge that the current Auditor General is an acting appointee – no trivial matter. As the country’s Attorney General tasked with advising the President and the Government, Mr. Nandlall may wish to confirm whether the holder of that important constitutional office was appointed to the acting position in accordance with the provisions of the Constitution which require the advice of the Public Service Commission.

5. Completely disregarding the principles and authorities on bias, Mr. Nandlall asserts that there is no scintilla of evidence of an actuality of conflict. May I respectfully refer Mr. Nandlall to the Pinochet extradition case in which a decision of the House of Lords was overturned after it emerged that Lord Hoffmann was a director of Amnesty International, a party to the case. A second strong House of Lords court, without Hoffmann, came to the same decision during which time the senior law lord, Lord Browne-Wilkinson, and four other law lords criticised Lord Hoffmann for flouting the basic principle that “justice must not only be done but must be seen to be done”.

6. And as for Mr. Nandlall’s “actuality of bias”, may I refer him to the case of Guyana Telephone and Telegraph Company Limited No. 13-M/1999, in which Justice Carl Singh as he then was, said “whenever a test is required to be applied for the determination of allegations of bias, the test [is] whether a fair minded observer might reasonably suspect the existence of bias”. I assume Mr. Nandlall knows about Justice Singh’s ruling but I prefer not to speculate about his reason for disregarding it.

7. Amazingly and with no legal foundation to support him, Mr. Nandlall seeks to apply the practice of one profession by analogy with the written Code of another, a sin of commission that is beyond legal heresy. As an accountant and attorney-at-law I submit that Mr. Nandlall’s analogy between the legal and accounting professions is misinformed, misconceived, misleading and unworthy of the learned Attorney General. Practitioners of the two professions are subject to entirely different Codes of Ethics. Lawyers describe the circumstances under the rubric “bias”: for accountants, it is an independence issue.

In penning his letter, Mr. Nandlall must have recognised that it would be seen as self-serving and opportunistic. With that burden, he could at least have taken the time to better inform himself of all the relevant rules and apply them to the factual circumstances, as he erroneously and misleadingly accused others of not doing.