Category: Letters to the editor

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The making of the Supreme Court a budget agency has placed the judiciary under threat

While the independence of the judiciary is often couched in lofty concepts about separation, one from the other, of the three arms of the state, the essence of it all is empowering, securing and protecting the judiciary and its individual members in their fearless and uncompromising defence of the fundamental rights of the citizens.

To ensure that independence, constitutions – including Guyana’s – provide elaborate mechanisms and safeguards to protect the judiciary and its members. These include security of tenure; salaries that are fixed and not subject to a vote by the National Assembly; Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them; the power to punish any person for their contempt; separation of the Judiciary from the other branches of the state; and immunity from criminal and civil actions in respect of judicial decisions.

Despite this formidable armory, Rudolph James, a Professor in constitutional law, in The Constitution of Guyana published in the 2006 Special Issue 35-36 of Transition, a publication of the Institute of Development Studies of the University of Guyana, writing of the conduct of the judiciary during an earlier era noted that while the leadership of the country set about to miniaturise the judiciary, the “Guyana judges largely contributed to their subservient status.”

Professor James was optimistic that with the commitment to democracy expressed by the new ruling party in 1992 “one expected a transformation of the judiciary …” But a decade later James lamented the many acts of indiscretion of the leadership of the ruling party including the late Mrs. Jagan, current President Jagdeo, Dr. Roger Luncheon and even the government’s high ranking judicial officers, acts that would in a truly democratic state be treated as contempt of the court. Instead, Mrs. Jagan won a nod of approval from a senior counsel when in his and the presence of the then Chancellor she disdainfully threw over her shoulders a judicial notice.

The onslaught has continued, sometimes with the approval of some of the very judges whose sacred duty it is to ensure the independence of the judiciary and their own. They have not raised their voices as Jagdeo undermined the judiciary with financial and fiscal incentives, embarrassed its membership by challenging their competence and judgment, emasculated them with laws that are clearly in violation of the Constitution and dared them to caution him when he pronounces on matters that amount to contempt of their proceedings.

The Time Limit for Judicial Decisions Act is only the most recent case of the legislature seeking to control the conduct of individual members of the judiciary. But Jagdeo whose capacity to use and misuse public money will go down in presidential folklore knows that the judiciary’s independence can be compromised both at the personal and institutional levels. For the latter the tool chosen is the Fiscal Management and Accountability Act 2003, the most insidious piece of legislation the PPP/C has passed to control some key constitutional bodies including GECOM, the Audit Office and the judiciary. By making the Supreme Court a budget agency, the judiciary’s independence has been made subordinate to the legislative and the executive arms, bringing it under the control of the Minister of Finance. Moreover the judiciary is treated on the same basis as the regions and ministries whose financial misdeeds are legendary.

The Act seems clearly repugnant to several articles of the Constitution. Article 122 A (1) provides that the “courts and all persons presiding over the[m] shall exercise their function independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control”, while Article 122 A (2) makes all courts “administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund.”

When an entity like the judiciary, the Audit Office or Rights Commissions, or a payment like the public debt is funded by a charge on the Consolidated Fund it is included in the Estimates as a block sum and does not require a debate or subject to a vote by the National Assembly: Article 218. And Article 217 sets the mechanism for the payment of the sum so charged by requiring that the “moneys charged …shall be paid out of that fund by the Government of Guyana to the person or authority to whom payment is due.”

To add clarity and reinforce the court’s independence even in financial and administrative matters Article 222 A states that the expenditure shall be by way of an annual subvention. But by making the judiciary a budget agency, it now has to answer to the Finance Secretary about its affairs and is required to provide information and explanations to the National Assembly. Worse, under the Act the Finance Secretary can designate who the head of the judiciary should be for purposes of the Act!

Not that the Constitution expects a lower standard of accountability or financial management in the judiciary than it expects of budget agencies. Indeed Article 122 A (2) imposes on the courts the obligation to “operate in accordance with the principles of sound financial and administrative management”, similar standards set for budget agencies.

The questions being asked is if the judiciary, the guardian of the constitution and the protector of the citizens, can be so easily emasculated, what hope is there for the citizens? If it cannot defend itself, how will it defend them?

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Advice by the Clico liquidator for continued payment of premiums is legally questionable

In Business Page of October 3rd, 2010 I expressed the hope that those who were entrusted with powers and duties for the liquidation of Clico would ensure full compliance with the laws. For the several hundreds of persons who have so far received their cheques, the law and its processes are not important. But spare a thought for all the others who are in limbo, uncertain of their fate and funds and getting information from Mr. Lawrence Williams, the Court-appointed liquidator, that conflicts with commitments given by President Jagdeo. Let us remember that those in limbo include the NIS which is owed about six billion dollars by Clico and for which one way or the other we the taxpayers will have to bear the cost.

So far the liquidation has gone according to the script written by the President, a script that sets out a process and scheme of preference not consistent with the law. During the time, I have received many complaints and copies of correspondence and policies from persons who were told that because their policies did not have any cash surrender value they have nothing to get. There is merit in that. But what I find most uninformed, irrational and unlawful is what appears to be a circular-type letter sent by Mr. Williams to one policy holder earlier this month.

In the letter Mr. Williams identified eight types of policies sold by the company and encouraged the holders of those policies “to continue payment of premiums to avoid losing contracted benefits.” Whatever might be his intentions – and I know him well enough to know that these are well-meaning – what he is trying to do is legally questionable, unnecessary and unlikely to benefit policyholders.

The principal duty of the liquidator is to call in the assets and ascertain and pay off the liabilities of the entity. He can only carry on any business with the approval of the court.

Of the eight types of policies at least two are not susceptible to cash surrender value so his advice to pay premiums on those is ill-conceived. It would be silly for the holder of one of these policies to put further money into Clico. Find another insurance company and get another policy.

And for those policies that are so susceptible, there is no reason why any negotiations for the sale of a portfolio of policies to another insurance company – the rationale for his “encouragement” – cannot include policies that have already earned cash surrender value and those that have not. Why is he encouraging people to gamble on whether or not the belated efforts will succeed? Insurance is about covering risks, not taking a gamble.

But once again the Office of the Commissioner of Insurance that should be looking after the interest of the policy-holders and advising on technical issues has allowed itself to become a bystander.

The acting Commissioner Ms. Tracy Gibson now has taken up office at Clico, apparently appointed by Mr. Williams, along with Mr. Maurice Solomon, to carry out the liquidation on his behalf. Might I add that under section 375 of the Companies Act, Mr. Williams needed the permission of the court to make those appointments.

Unlawful action and poor supervision have played no small part in the substantial losses the country, its taxpayers and policyholders have suffered from the Clico fallout. Even if the Office of the Commissioner of Insurance makes the doubtful assumption that its obligations with respect to Clico ended with the appointment of a liquidator, the office holder should not abandon policy holders and become associated with actions that can bring the Office into question.

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Dr Singh’s appointment as acting Prime Minister was unconstitutional

Article 101 of the Constitution was this month tested when Dr. Ashni Singh, an unelected Member of the National Assembly, was sworn in to act as Prime Minister. The Article states that “The President shall appoint an elected member of the National Assembly to be Prime Minister of Guyana…”

The press was convinced that Singh could not be appointed but the Office of the President (OP) ruled that “the appointment was well considered and is within the ambit of the constitution of Guyana.” No explanation was offered and one must therefore make assumptions about the logic of the ruling. Is it that OP considers that since Dr. Singh’s appointment was an acting one, the Constitutional limitation does not apply? If that logic is applicable, which I doubt, then it should also apply to corresponding constitutional powers in which case an acting President could not have appointed Singh. The Office of the President cannot have it both ways.

And let us take a very practical example. Let us apply this logic to the Audit Office and specifically the position of the Auditor General. Section 8 of the Audit Act 2004 provides that “The salary, superannuation, benefits and other conditions of service of the Auditor General shall be the same as those of the Chief Justice.”

Since the holder Mr. Deodat Sharma is not qualified to hold the substantive position as Auditor General and is therefore only acting in the position, would either Dr. Luncheon or Mr. Sharma tell us if he is entitled to and avails himself of the benefits of section 8 of the Audit Act including a tax-free salary?

My view is that the acting President does have the power to make the appointment but only of someone qualified under the Constitution, which clearly rules out Dr. Singh. And that only a properly qualified person – which would rule out Sharma – could act as Auditor General and enjoy the benefits of the law.

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The New Guyana Company has not filed annual returns for nearly two decades

Today I had a conversation that I cannot help but link to two telephone calls I made yesterday. If in fact today’s conversation is linked to my calls yesterday, then we have the frightening possibility of illegal wire-tapping of telephone calls made by law-abiding citizens.

The calls were about the New Guyana Company Limited, the publishers of the Mirror newspaper. I am aware that my mother, of whose estate I am the executor, was a modest investor in the company which was launched some time in the 1950s or ’60s. Indeed,according to ancient records in the Companies Registry, her name, Mrs Jankie Ram, is recorded on Folio 859 of the company’s share register, the same folio on which appears the name of my late brother Ivan Ram.

My examination of these public records was revealing. The New Guyana Company Limited has not been filing any annual returns for close to two decades, and from all appearances has not been holding any annual general meetings, as I am sure my mother would have notified me. To make matters worse, under the Securities Industry Act 1998, the New Guyana Company Limited is a public company with stringent reporting obligations. I can also say that I saw no evidence that the company was continued under the Companies Act 1991 although that may reflect deficiencies in record-keeping rather than non-compliance.

These point to a form of serious corporate fraud on the investors in the company and a disregard of the companies and securities laws of the country. As executor of my mother’s estate, I am consulting with legal counsel on options to restore and protect the rights of what may turn out to be approximately two thousand investors and to ensure that our laws are observed.

On the wider issue of wire-tapping, it is would seem that politically connected persons who might have an interest in concealing the malfeasances of the company might have intercepted my telephone conversation.

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Cents were abolished by statute

I no longer believe that Mr Rajendra Rampersaud is engaging in a coherent, sensible discussion. He writes a letter (‘Ram’s analysis in relation to the exchange rate was flawed’ SN, October 27) in which he refers to “fifty Guyana cents.” I pointed out that “cents” as part of Guyana’s currency had been abolished by statute (‘Business Page statement derived from Bank of Guyana report’ SN, October 29). Obviously forgetting or not understanding my point, he then volunteered the information that the Bank of Guyana had long before 1998 withdrawn cents by way of a circular! (‘Exchange rate movements cited by Mr Ram were taken into consideration under the Real Exchange Effective Rate’ SN, November 1)

I must therefore withdraw from further engagement with Mr Rampersaud who thinks others’ “conclusions are based on superficial feelings and political spin in total disregard for fundamentals.” I am not interested in his brand of fundamentals.