Expenditure on new ministries would be unconstitutional

The Guyana Times of Sunday May 24 (New Ministries created by Granger illegal – PPP/C) reports former President Bharrat Jagdeo and former Attorney General Anil Nandlall as stating that “the formation of new Ministries is illegal since monies cannot be released to those entities, which are not represented in the Appropriation Act.”

This is a bit ironic. President Donald Ramotar did exactly that when he created the new Ministry of Natural Resources and the Environment and appointed Mr. Robert Persaud as the Minister. This was long before the convening of the Tenth Parliament and the passage of the Appropriation Act 2012, assented to on April 30, 2012.

The fact that the PPP/C created a new ministry before any Appropriation Act was passed does not itself make President Granger’s action legal, or illegal. In fact, the creation of a new ministry in 2012 by the PPP/C was as legal as the creation of new ministries by the APNU+AFC in 2015. Article 100 provides for offices of the Prime Minister, Vice-Presidents and Ministers of the Government as may be established by Parliament or, subject to the provisions of any Act of Parliament, by the President.

Article 120 of the Constitution gives the President the power to constitute offices for Guyana [and] make and terminate appointments to such offices…” There is no requirement for an appropriation Act before the creation of any ministerial or other constitutional office and It would have been useful for Mr. Jagdeo or Mr. Nandlall to have pointed out the illegality of President Granger’s combined acts.

The Cabinet has a number of lawyers, two of whom are affected by the creation of these new ministries. I have no doubt that all these lawyers would have considered the constitutional ramifications of the action by President Granger and offered their views to the Attorney General, who is the principal legal adviser to the Government.

Notwithstanding the legality of the appointments, it does appear to me that the Constitution forbids the expenditure of any money on those ministries without parliamentary approval. Article 120 goes on to state that “where the constitution of, and making of appointments to, such offices involve expenditure chargeable on the Consolidated Fund, such expenditure shall be subject to the approval of the National Assembly.”

In my view “approval” in this article can only be reasonably interpreted to mean prior approval, and not approval by way of any subsequent, supplementary Appropriation Act. On my interpretation, any expenditure on these new ministries, including any payments to and for the ministers and the supporting ministers, would be unconstitutional.

Another GECOM let down

Introduction
Once again, the role of GECOM in the determination and publication of the results of national and regional elections as well as its general functions have been highlighted. GECOM as it exists today is the product of the efforts to address widespread concerns that elections prior to 1992 were not free and fair. A limited reform process resulted in the 1992 elections being conducted under a seven-person Commission made up of three members named by the Government, three by the Opposition, and the Chairman selected by the President from a list of six names submitted by the Leader of the Opposition is often referred to as the [President] Carter formula.

While politically the formula was considered acceptable since both “sides” of the divide felt represented in the process, it was intended to be a temporary arrangement to be reviewed for subsequent elections. Inertia set in and the formula has remained unchanged for all five elections since 1992. It should not continue.
Continue reading Another GECOM let down

Mr Nawbatt’s campaigning an abuse of state resources

There were credible reports that on Elections Day 2011 Minister of Foreign Affairs Ms. Carolyn Rodrigues-Birkett was out campaigning for the PPP/C in the hinterland Amerindian communities. If that was not a violation of the Representation of the People Act it came very close.

It seems that Ms. Rodrigues-Birkett is at it again this year and has brought in the Guyana High Commissioner to Canada Mr. Harry Nawbatt to campaign with her in those communities, exploiting his work as a Contract Employee with SIMAP some years ago. (See Stabroek News May 9, 2015 `Envoy to Canada campaigning for PPP/C in Rupununi’). This is particularly troubling not least because Mr. Nawbatt is an election official for the voting by those Guyanese eligible to vote by virtue of their employment in Canada.

Fortunately there are scores of observers for the elections tomorrow and I am sure that they are taking note of the misuse of state resources by the PPP/C in this campaign. I hope too that GECOM, which has the constitutional and statutory duty to hold elections that are free and fair, is also taking note.

I am confident that the Coalition will win these elections despite the grievous abuses of state resources by the PPP/C, its ministers, high commissioners and other public officials. Among the many tasks the Coalition in Government will face is to mandate GECOM to make recommendations and proposals to prevent such abuses ever taking place again in Guyana. Such reform is long overdue.

Candidates Ramotar and Anthony violated an express provision of the elections legislation

Section 67 of the Representation of the People Act provides that the election agent of each group of candidates may appoint one of the candidates as its duly appointed candidate to attend the poll at a polling place. The election agent must do so in writing and deliver it to the returning officer of the district not later than seven days before the election day. Only one person may be so appointed for any one polling place.

The presence of candidates Mr. Donald Ramotar and Dr. Frank Anthony of the PPP/C at Camp Ayanganna on May 2, 2015, reportedly observing the voting of the army personnel, is a violation of the Act. As if that was not bad enough, Mr. Ramotar’s attendance in his Party colours was naked electioneering at a place of polling, which is also forbidden. And then to top it all here, candidate Ramotar is permitted to handle and examine what looks suspiciously like the voters list for that polling place.

GECOM, unreasonably in my view, last week decided to deny citizens the right to vote if they choose to do a conflicting duty to assist the elections process as party agents. Yet is it willing to tolerate and close its eyes to the picture of candidates Ramotar and Anthony violating an express provision of the elections legislation and engaging in politicking at a place of poll. The presiding officer should have excluded at least one, if not both candidates and advised them that they had no lawful business there.

I hope that this will not be repeated come May 11.

Ms. Baksh avoided main points about a conspiracy to conceal mandatory info on Berbice Bridge Company

It is good that Ms. Azeena Baksh, the Registrar of Deeds responded, even if indirectly, to my blog article Conspiracy to conceal mandatory public information in SN’s letter of May 2, `Procedure on filing of annual returns clear’.

Ms. Baksh’s claim that she was extending to me “respect” by calling on BBCI to file their annual returns shows a fundamental misunderstanding of the duties of the Registrar and of the public records function of the Registry. Section 487 (2) prescribes that the Registrar “must send to [any company in default of its filing requirement] a notice advising it of the default and stating that, unless the default is remedied within twenty-eight days after the date of the notice, the company or other body corporate will be struck off the register”.

Even if Ms. Baksh were to claim that she was exercising some legitimate discretion towards BBCI, such exercise must be reasonable. The circumstances of BBCI certainly do not justify a delay of more than two years in holding its 2012 AGM. The shareholders are all resident and the accounts are pretty straight forward.

The reality is that BBCI is experiencing difficulties meeting its financial obligations and wants to delay publication of its financial statements and report of the directors until after the May elections. My understanding is that the directors have approached the PPP/C government with a number of options, including raising the toll!

Ms. Baksh also claims by way of excuse for her inaction in relation to BBCI’s 2012 and 2013 returns that the Registry is “handling backlogs for the period 2002”. She may wish then to explain how companies #6450 incorporated in 2010 and #’s 6506, 6904 and 6951 incorporated in 2011 were struck off by the Registry. Or why the PPP controlled New Guyana Company Limited incorporated in 1959 is still listed as an active company despite its illegal conduct, and egregious breaches of the Companies Act for non-filing of annual returns, changes of directors, secretary, etc.

As an aside, Ms. Baksh has been in the job since 2012 and she is now only at 2002! At this pedestrian rate, heaven knows when the Registry will have up-to-date records, its very raison d’etre.

Now to some specifics. Contrary to what Ms. Baksh’s claims, BBCI did not respond to the Registrar’s request and ask for a 28 days extension for filing their returns. What BBCI did was write her stating that the Minister of Finance had approved an extension to June 30, 2015 for the holding of BBCI’s 2012, 2013 and 2014 annual general meetings. Surely Ms. Baksh must be aware that extensions are granted subject to conditions and directions and are not a carte blanche exemption as the registrar seems to think.

May I point out too, that Ms. Baksh contradicts herself, stating in one breath that she will not put on record any document marked “Private and Confidential” and in another that BBCI’s request was placed in its file in the Registry. There is a system in the Deeds Registry that every visit I make there and any staff I engage, is noted, regardless of the official nature of my business. The Registrar would know that I visited the Registry on Friday last. My diligent enquiry concerning any developments or updates regarding BBCI contradicts her assertion.

Ms. Baksh may wish to elaborate for the public how placing a private and confidential reply on file renders “the rule of law” chaotic. And I would be most grateful if she would direct me to the provision of the law which permits her as Registrar to withhold information from the public in relation to the failure of a company to meet its statutory obligation under the Companies Act. As a member of the public I have certain rights which by her inaction and acquiescence I am being effectively denied.

Ms. Baksh has avoided the main points in my article that led to the inescapable conclusion of a conspiracy to conceal mandatory information pertaining to BBCI. In the interest of space I summarise those points: first, Finance Minister, Dr. Ashni Singh’s purported approval for the Bridge Company to extend up to June 30, 2015 the date for BBCI to hold its 2012 AGM is unlawful and void; second, even if the Minister had such authority, the precondition was not met; and third, and perhaps worse, BBCI never made an application to the Registrar for the presentation of dated accounts to any AGM and so she could not therefore approve any extension. Even at the most charitable level, unfamiliarity with certain relevant provisions of the Companies Act cannot explain this series of grave mistakes in which Ms. Baksh persists.

The unfamiliarity goes further and has even more serious consequences as seen in the botched CLICO liquidation. Despite my drawing the relevant provision to Ms. Baksh’s attention on more than one occasion, she has failed over a period of years to carry out her duty to have the statements of the Liquidator of CLICO audited, as required by the Companies Act.

At the time of her application for the position as Registrar Ms Baksh had neither the relevant training nor experience for the position. However, as luck would have it, she was appointed to the position. A country needs to have as the keeper of its public records persons whose professional competence and impartiality are beyond reproach. Ms. Baksh as the keeper of the companies’ records has a long way to go to convince many members of the public that she possesses those qualities. She can begin with BBCI and New Guyana Company Limited.

I accept that this letter is long. However I think the exchange puts our regulators under the microscope which I think is a good thing. I believe we need more accountability and reporting from all our regulators.