Category: Letters to the editor

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Contrary to what Luncheon claims NICIL is a government company

I find the earlier pronouncements of Drs Roger Luncheon and Ashni Singh and now Mr Winston Brassington that National Industrial and Commercial Investments Limited (NICIL) is a private company with the legal right to withhold public moneys annoying, self-serving, misinformed and mischievous. It is sad, and even dangerous, that individuals with the power to make major decisions over the resources of the country and the lives of its people can be so deficient in their knowledge and reckless in their actions.

Dr Luncheon wrongly informed the media that there are “20-something articles that underpin the creation of NICIL and none of them says that money from NICIL has to be put in the Consolidated Fund.” Mr Brassington adds his share of vacuity with his pronouncement that “proper accounting requirements dictate that money from the sale of government assets should first be placed in the company account, provided it can adequately discharge all of its liabilities.” In my 42 years as a professional, I have never heard anything so absurd and facile.

In fact, the Articles of Continuance of NICIL comprise nine articles (see attached) and it operates under, and is classified by the Companies Act 1991 as a “Government Company.” The Act imposes on NICIL the following obligations over and above those imposed on companies generally:

1. that sections 48 and 49 of the Public Corporations Act dealing with accounts and audits apply;

2. NICIL is required to submit to the Minister of Finance an account of its transactions and audited financial statements no later than June 30 of the following year; and

3. the Minister of Finance is required to lay in the National Assembly the statement of transactions and the audited financial statements no later than September 30, ie, within 90 days of receiving them.

The public is reminded that the Chairman of NICIL is Dr Ashni Singh and the Minister to whom he must submit the report and accounts is the same Dr Ashni Singh. If it was only these breaches of which he is derelict, it would still be a serious matter. But there are more, and worse. The Government of Guyana “vests” lands and other properties in NICIL – on whose Board also sit Drs Luncheon and other Cabinet members – which then sells the assets and pockets the money. The government also uses NICIL to collect dividends from Guyoil, GT&T and other investments which are also retained by NICIL.

This scheme, which assumed scandalous proportion under the Jagdeo-Ashni Singh duo, has become a ruse to get around Article 216 of the Constitution which requires “All revenues raised or received by Guyana to be paid into and form one Consolidated Fund.” By their own boasts, NICIL has collected tens of billions of dollars and not paid these into the Consolidated Fund.

To any ordinary person, so far as the land transactions are concerned, NICIL is merely an agent for the government. Therefore, the moneys it collects should be paid over to the Ministry of Finance to be deposited into the Consolidated Fund. Instead, in an arrangement which in neighbouring Trinidad would be considered criminal, NICIL’s board uses the funds as a second budget to do the things which the Finance Minister would not be comfortable in bringing to the National Assembly, like the Marriott Hotel, like getting involved in Pradoville 2 and for miscellaneous purposes including secret overseas trips, etc. Article 217 of the Constitution dealing with spending public moneys does not allow any of these.

Now, to go back to the absurdity about state companies being subject only to the company laws, I refer the financial doctors to the following two documents: 1) the Report of the Working Party on the Harmonization of Company Law in the Caribbean Community, and 2) the Report of the Review Committee on the Companies Act of Guyana.

This is what the Working Party Report under the heading Public Accountability has to say in paragraphs 19.142 [in part] and 143:

“Whether the company is a mixed enterprise or wholly State owned, public funds are employed for the capital of the company. In the view of the Working Party, this introduces an important dimension with which existing company law does not deal….”

“With respect to companies with capital drawn from public funds, however, the State shareholder is in theory the party which should ensure that proper use of those funds is taking place. In practice, this cannot provide a system of accountability to the public for the effective use of public funds. It by no means follows that the assessment of the State as shareholder with respect to the running of the company will stand up to scrutiny when viewed as a public investment. Increasingly, arguments are made in this context for some additional mechanism whereby the performance of the company in relation to the investment of public monies is subject to accountability beyond the company itself.” And the Guyana Review Committee appointed by the Hoyte administration to consider the report of the Caricom Working Party proposed the adoption of its recommendation that “wholly-owned government companies should be constituted under the Public Corporations Act.

Presciently, the authors of the Working Party Report, including our own Bryn Pollard, were saying thirty years ago, that there could be no accountability under the NICIL-type model, even if it did not have the degree of egregiousness practised by Drs Singh and Luncheon and Mr Brassington.

And finally, with respect to the chorus that it is for the directors to decide if and when NICIL would pay any dividends to the government, let us recall that in 2009, the government, a mere 20% shareholder in GT&T, caused that company to pay more than $6 billion in dividends. And guess who the Finance Minister was and who was the government director on the Board of GT&T when that “persuasion” took place? Dr Ashni Singh and Mr Brassington respectively.

Now the same Messrs Luncheon, Singh and Brassington are bold enough, in respect of a 100% government company in which public property is routinely vested, and which has a 100% Cabinet Board, to plead impotence in calling for a dividend which the country badly needs to help the working and the non-working poor.

To show how reckless and ridiculous it has become, only a couple of years ago the government forced the Geology and Mines Commission to pay $1.8 billion to NICIL to build/repair roads in the hinterland communities, all done by way of a Cabinet directive signed by Dr Luncheon.

For too long constitutional violations, financial improprieties, mis/malfeasance in public office and breaches of fiduciary duties have been tolerated by this bleeding country. It is time for the talking to stop and for the courts in Guyana, and if necessary the Caribbean Court of Justice, to be invited to address these matters. Sooner rather than later some Guyanese will decide that enough is enough.

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The $18.3B which was cut from the LCDS needed to be covered by a conditional appropriation

I prefer to impute no motives to Government spokespersons or self-appointed, self-interested critics of the Budget “cuts”, including Drs. Ashni Singh, Roger Luncheon and Leslie Ramsammy, Mr. Juan Edghill and Carvil Duncan, Martin Goolsarran and Fuzzy Sattaur and Ms. Gita Raghubir and Alexei Ramotar for misrepresenting the “cuts”, including the removal of the LCDS money from the Appropriation Bill for the 2012 Budget. Shepherded by Mr. Martin Goolsarran into NCN to cry “heartless and unpatriotic”, none of them it seems, including Ms. Raghubir, an attorney-at-law, bothered to check the Budget “law”, the Fiscal Management and Accountability Act.

They would have learnt that the appropriation of expenditure of $18,394,650,000 had to be brought by way of a Conditional Appropriation Bill under section 21 of the FMAA, and not by way of an Appropriation Bill. But before I refer directly to section 21, I draw attention to both the Explanatory Memorandum to the Bill as well as the statement made by then Finance Minister Mr. Saisnarine Kowlessar in the parliamentary debate on the Bill on December 15, 2003.

The Explanatory Memorandum states that the bill “establishes the concept of conditional appropriation, whereby an agency may be appropriated sums that are conditional on the said agency achieving specified levels of revenue in accordance with an agreement entered into with the Minister.” In other words, the National Assembly authorises the expenditure but only if (or conditional upon) the money comes in.

For his part, Mr. Kowlessar in introducing the Bill said “… In addition, the Bill describes the concept of a conditional appropriation, as well as details the terms and conditions under which such appropriation may be made and accounted for.”

It is nonsensical for Dr. Singh to compare the expected LCDS sums with VAT and say that since VAT has not yet come in, maybe a Conditional Appropriation Bill will be required for VAT as well! Does he believe that in relation to him Guyanese are that stupid and cannot understand the difference between a tax (VAT) and moneys that come under an MOU with preconditions attached? Someone should have pointed out to Dr. Singh there and then that it was his Government that passed the Fiscal Management and Accountability Act because US$30 million of donor money depended on its passage. Details then did not matter. And if the PPP/C can ignore the Constitution, ignoring a mere law is no big deal.

The logic of linking the expenditure to income by way of a conditional appropriation is evident from the following example. For the year 2012, expenditure of $18.394 billion represents more than 12% of the non-LCDS budgeted Current and Capital Revenues. If that sum is spent but the money does not come in, the government’s expenditure will have exceeded its income not only by the $30.524 billion shown in the Budget but by an additional $18.394 billion, bringing the 2012 budget deficit to $48.918 billion, or close to quarter billion United States Dollars. No amount of juggling of figures or playing with the 2000 Series Bank Accounts can mask that reality.

To see how inconsistent Dr. Singh has been in relation to budget preparation for future revenue flows, one needs to look no further than the 2011 budget treatment of the Chinese vessels in which only the local expenditure of $366 million was included at the time of the budget presentation. It was not until one year later, when the resources had actually arrived in the country that Dr. Singh went to the National Assembly for supplementary appropriation of $2.588 billion. At the time, former Finance Minister Carl Greenidge drew Dr. Singh’s attention to section 21 of the Act, pointing out how it should have been treated in the first place. But so convinced was Dr. Singh that he could never be wrong, that he ignored Mr. Greenidge.

Much was made of the fact that the $18.394 billion that was removed from Budget 2012 included an unspecified amount for land titling for Amerindians. In fact, the issue of land titling for Amerindians (so far as necessary) fits neatly into the provision of the Act by allowing a “conditional appropriation” to consist of both a) an authority to spend a specified amount of money; and b) an additional authority to spend a specified amount of money, conditional (emphasis mine) upon budget agency receipts earned by that budget agency and being credited to the Consolidated Fund.

I say ‘so far as necessary’ because land titling is a constitutional requirement which since 1993 has been funded each year out of annual appropriations and need not be tied in with LCDS money. It would be a sad day indeed if our first people have to wait on foreign moneys to right the historical wrongs inflicted upon them centuries ago. But I suspect that the Singh/Luncheon formulation of including it was as bait to the international community with its soft spot for indigenous peoples across the world.

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Mr. Brummell’s purported appointment as acting Commissioner is unconstitutional

From the press, the public has learnt the Mr. Leroy Brummell DSM has been appointed as acting Commissioner of Police. It seems, once again, that the country is being treated with casual if not reckless disregard with respect to constitutional positions.

Article 211 of the Constitution provides for the Commissioner and Deputy Commissioner of Police to be appointed by the President after meaningful consultation with the Leader of the Opposition and the chairperson of the Police Service Commission. Specifically, Article 211(2) makes the appointment of an acting Commissioner subject to the same constitutional requirements as the Commissioner.

I am advised that there has been no consultation on the “appointment” of Mr. Brummell. It is therefore my opinion that Mr. Brummell’s purported appointment is unconstitutional, null and void.

For good measure Mr. Henry Greene who is the substantive Commissioner was required, under Article 211 (3) to vacate office when he attained age fifty five (55). He did not do so because according to Dr. Luncheon the government has entered into an agreement with him to continue until age 60. That agreement too is unconstitutional.

So we are in the unique position where both the substantive Commissioner (Greene) and the acting Commissioner (Brummell) exist in a constitutional illegality. What a country!

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Mr Ramnarine was exercising a right and duty under Article 32 of the Constitution

There has been a call from high-up for the disciplining of senior police officer David Ramnarine for exposing certain practices in the Guyana Police Force, and for claiming that his constitutional rights trump the Force Orders. The practice he identified was in connection with the payment of $90 million from Contingencies Fund to feed the Police over the November 28 elections period. On the question of the constitution, Mr. Ramnarine was in fact not only exercising a right but rather carrying out a duty which Article 32 of the Constitution imposes on every citizen. And as just about everyone by now knows, the Constitution is the supreme law of Guyana and not even the Parliament can make a law that is in conflict with it.

I cannot see then how some Force Order purporting to restrict a right could abridge a duty imposed by the Constitution. I would therefore like to receive from the Minister of Home Affairs an informed opinion on which instrument – the Constitution or the Force Orders, or which interest – secrecy of the Police Welfare Fund or the protection of public property – his Government considers paramount.

For, as Article 32 states: “It is the joint duty of the State, the society and every citizen (emphasis mine) to combat and prevent crime and other violations of the law and to take care of and protect public property.”

The country is fortunate and grateful that circumstances forced the lone Mr. Ramnarine to exercise his constitutional duty under Article 32. It is frightening to reflect on the several others in the Police Force, some more and others less senior to him, the GDF, the ministries and departments, and the hundreds of thousands of Guyanese who daily fail in their Article 32 duty.

Whether by accident or intent, Article 32 is a Whistleblowers protection in the public service. I would like to see some enabling legislation aimed at giving effect to Article 32, and to wrong-doings in the private sector as well.

I draw attention also to a further development from the same issue. In the process of his revelation, Mr. Ramnarine implicitly exposed a weakness in the State audits to which I have been drawing public attention: that a bare statement in the Audit Report that drawings from the Contingencies Fund did not meet the criteria set out under the Fiscal Management and Accountability Act was not enough. The Audit Office needs to go further and by a scientific sample, audit Contingencies Fund transactions for accuracy, authority, authenticity and completeness from what auditors call cradle to grave: in this case from the issue of the drawing right by the Minister of Finance to his timely request to the National Assembly for replenishment. The Minister of Finance has only up to the next sitting of the Assembly to seek approval.

I have noticed that the Auditor General (ag.), against a background of public concerns, has announced a special investigation into the $90 million fiasco. I should remind him that Dr. Ashni Singh’s Supplementary Appropriation for expenditure during the parliamentary break involved $5.7 Billion, of which $2.4 Billion was judgmental. I doubt that the public and the parliamentary opposition will be satisfied with another limited scope, incomplete and therefore inadequate exercise.

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There are numerous examples of the Finance Minister’s mismanagement

Mr. Nigel Hinds’ letter ‘Ashni is in the best and brightest category’ (Stabroek News, March 15, 2012) has drawn sharp comments on the meaning and intent of the term “best and brightest”, particularly from those who felt that Mr. Hinds was unjustifiably praising Dr. Ashni Singh, the Minister of Finance. In fact, “best and brightest” is a term of deprecation going back at least to a letter in a 1769 publication in which the writer used it mockingly and ironically to describe King George III’s ministers. Exactly two hundred years later, its place in infamy was sealed when journalist David Halberstam used it as the title of his #1 bestseller which exposed the intellectual bankruptcy of the whiz-kids of John Kennedy’s disastrous policy that led to America’s ignominious defeat in the Vietnam War.

That it was in that context of derision that Mr. Hinds identified Dr. Singh is clear from his paragraph calling for his “cleansing the Augean Stables filled with questionable deals, those facilitated by National Commercial and Industrial Development Limited (NICIL), sale of Sanata Textile Mills, Amaila Falls Project engineered by the infamous Fip Motilal, Georgetown Public Hospital Corporation [GPHC] contracts with New Guyana Pharmaceutical Corpora-tion [New GPC], and the absence of lottery funds from Consolidated Fund to name a ‘few’ ”.

It is public knowledge that Dr. Singh was personally involved in every one of these “questionable deals”, and in the case of the “infamous” Fip Motilal, Dr. Singh’s ministry caused to be issued through GINA a three page attack of undignified calumny on “Ram-like critics” who, on the bizarre selection of Fip Motilal as contractor for the road to the Amaila Falls, dared to expose Motilal as an unqualified contractor. They have been proved right and Dr. Singh wrong. In the case of the GPHC and New GPC contracts, it is the Dr. Singh-controlled National Procurement and Tender Administration Board that annually approves single source contracts, and outrageous of all, Dr. Singh chairs the truly egregious NICIL which spearheaded the tender for the Amaila Road Project.

But these were only a few examples of Dr. Singh’s “brightness”. Here are some others:

1. Every single audit report since Dr. Singh became Minister of Finance reminds us that “the Contingencies Fund continues to be abused”. And the abuser: the Minister of Finance in whom section 41 (2) of the Fiscal Management and Accountability Act (FMAA) invests sole powers and responsibilities over the Contingencies Fund.

2. Dr. Singh’s Finance Ministry has underwritten every one of the irregular transactions of the Jagdeo Administration since October 2006, including the infamous Pradoville 2 for which Dr. Singh’s NICIL allotted house lots to former President Jagdeo, Cabinet Members, members of NICIL boardand friends, all at below market price; computer purchases from a Brooklyn barbershop location; sole sourcing of school books for $90 million; disastrous multi-billion dollar road and other infrastructure contracts.

3. On all but one occasion of Dr. Singh’s presentation of the [annual] mid-year report under section 67 of the FMAA, the report pre-dates by months the date of its publication, prompting integrity concerns.

4. Dr. Singh has never once complied with section 21 of the FMAA dealing with conditional appropriations. Nor on his own recent admission in the National Assembly, has he ever complied with section 24 (4)of the FMAA, on each of the fourteen occasions he came to the National Assembly for supplementary funds, concealing the annual budget deficit.

5. Dr. Singh has begun to use creative financing to plug the ballooning budget deficit caused by over-spending and non-receipt of the Norway money. In 2010 he treated $11.117 billion as Miscellaneous Income, “the net result of the ‘closure’ of inactive accounts, and retiring long outstanding obligations in relation to the issuance and redemption of Government Securities.”

6. Dr. Singh was central to the sale of state property and the unlawful granting of tax exemptions to the Ramroop group. In these transactions, Dr. Singh had not one but three occasions to check the validity, legality and propriety of the transactions: as Minister of Finance, as Chairman of NICIL, and as a senior Cabinet minister. He missed them all.

7. As Minister of Finance, Dr. Singh controls the Consolidated Fund and has allowed the proceeds from the Lottery to be placed in a “special” account outside of the Consolidated Fund. He approves the operations of this extra-ordinarily special account from which only his mentor, former President Jagdeo could spend.

8. Dr. Singh was part of a transaction for $4 billion in which there was sufficient evidence to refer Minister of Housing Irfaan Ally to the Privileges Committee for allegedly misleading the National Assembly.

9. Dr. Singh has presented five budgets to the National Assembly totaling $627.5 Billion. During that time, we have had no natural disasters or economic shocks undermining the Budget. Yet, during the same period, Dr. Singh has returned to the Assembly with fourteen (14) supplementary appropriation bills covering over 440 transactions totaling $67.5 billion –conditions that would embarrass even a mediocre budget controller. For good measure, none of the transactions involving drawings from the Contingencies Fund, covering a minimum of $19.5 billion, was brought within the “next sitting” of the National Assembly timeframe required under section 41 (5) of the FMAA.

10. Dr. Singh has ministerial responsibility for the National Insurance Scheme and the Insurance Act. To him therefore, is due more than a quarter share of the blame in the Jagdeo-Dr. Singh-Luncheon-Gita Singh quartet for the NIS loss of $5 billion in Clico.

11. As Finance Minister Dr. Singh would have known of the mistake that led to the excessive VAT rate of 16%. In order to disguise the effect of the mistake and a windfall of close to twenty billion dollars, he sought supplementary spending provisions of $18 billion in the last two months of 2007! “Brightness” is certainly not the word to describe such shocking conduct. No wonder, neither Dr. Singh nor former President Jagdeo has responded to my several public challenges to them to release an unredacted copy of the report of the Barbadian consultant who was contracted to carry out the exercise. As a result the state has so far gouged the Guyanese taxpayer of more than fifty billion dollars.

As readers would expect, such a letter cannot address all the financial shenanigans hidden in the spending of $627 billion (US$3,135 million) during the last Parliament. Only a thorough investigation initiated by the National Assembly will reveal how the “best and brightest” Dr. Singh and his mentor, that other “best and brightest” Mr. Bharrat Jagdeo, have mismanaged the country’s finances for five years.