Today’s column is about the laws of Guyana, a revised version of which was published in late 2013 and stated the law at December 31, 2010. Before I get to the essence of this column, let us take three specific examples.
1. In 2013 the Ministry of Labour sought to bring legislation to amend the law in relation to overtime work and pay. It is well known that at least one employer who is awarded contracts for the supply of labour to the government was breaching the amended law. The Ministry however appeared powerless to prosecute that or any other employer partly because of the clumsy and careless manner in which the amending legislation was prepared.
2. In the new Laws of Guyana, a Note of Subsidiary Legislation in the front page of the Mining Act states: “Subsidiary legislation made under this Act have been omitted due to the advanced stage of preparation of new comprehensive subsidiary legislation”. Apparently the Law Commission, which includes two senior counsel and the chief Parliamentary counsel and his deputy, did not think it necessary to include the not inconsiderable list of the omitted subsidiary legislation which apply until the new comprehensive subsidiary legislation is published.
3. Similarly, in relation to the forestry sector, a Note on Subsidiary Legislation states: “The Forests Regulations have been omitted as new comprehensive Forests Regulations are shortly to be made.” Close to four years since the effective date of the Revised Laws, those new comprehensive Forests Regulations have still not been published.
Apparently, neither “advanced stage” nor “shortly” connotes imminent to the Ministry of Legal Affairs.
Unfortunately, members of the legal profession who welcomed the publication of the revised Laws only became aware of those omissions after forking out $825,000 for the eighteen volumes. Significant though those omissions were, if they were indeed the only omissions, they may have been considered tolerable from a theoretical perspective, although the practical effect of the omissions would be of some consequence.
In his preface to the revised Laws, Mr. Anil Nandlall, Chairman of the Law Revision Commission stated that subject to the exceptions specified in or subsequently authorized under section 8 of the Law Revision Act, the edition included all enactments (emphasis added) in force in Guyana.
The laws of Guyana are published under the authority of the Law Revision Act, section 8 of which provides for two sets of laws which may be omitted from the Laws of Guyana. The first set comprises a) any Appropriation or Supplementary Appropriation Act; b) any applied law; and c) any subsidiary legislation which the Commission thinks fit to omit. The second set of laws which may be omitted are d) any loan Act or loan guarantee Act; e) any Act of the temporary nature which can, in the opinion of the Commission, be conveniently omitted; and f) any act authorised by order of the President to be omitted from the laws.
I consider the distinction in the two sets of laws which may be omitted worthy of note since in respect of the second set of laws, i.e. d), e) and f) above, a list of such laws must be included in the Laws of Guyana. This would enable all users, including judges, magistrates and court officials, legal practitioners and the public to have a full picture of the current laws of the country. No such list is included in the current laws.
The Laws of Guyana must also include a chronological list of Acts, a table of contents and an index. The Laws of Guyana as published include neither a chronological list of Acts nor an index. The failure to include a list of laws omitted, a chronological list of Acts, and an index means that the Laws of Guyana as published themselves do not comply with the law. Without being facetious, the laws are themselves lawless.
The unserious may defend the omissions as matters of form rather than of substance. But it would be sad to think that our legal profession, the administrators of the law and the public would accept such a facile explanation. Yet, the situation is actually worse. The National Accreditation Council Act of 2004 does not appear in the current laws despite the fact that it was never been repealed. Meanwhile the Council continues to operate within the framework of a nonexistent law.
Over the past several weeks I have had cause to review a number of legislation. Almost without exception they are errors of either omission or commission meaning that things that ought to be included in the Laws of Guyana are excluded, or things that are included ought to have been excluded. One of the errors in the tax laws could give rise to unnecessary litigation and cause losses to the revenue of the country. Another is of a more systemic and fundamental nature.
Law officers and practitioners are entitled to assume that the laws published under the Law Revision Act are complete and accurate. But in Guyana that would be a risky assumption to make. The laws are neither complete nor accurate. The impact of such errors on the administration of justice could be substantial. What if an issue to be resolved by the court by reference to the Companies Act, or indeed any other Act, touches on a point of the law that is a victim of one of these errors?
What to do
The question is what do we now do? According to Mr. Nandlall a Law Revision Unit has been established in his chambers with responsibility “for the continuous updating of the laws.” I suggest a more basic task with two prongs: one being the completion of the index, the chronological list of Acts and the list of the laws omitted. The other is an immediate and competent review and edit of the entire eighteen volumes to make sure they are complete and correct. In the interest of the proper administration of justice, this has to be done. No legal system can function properly if the laws as published are inaccurate, incomplete and unreliable.
The laws of the country are those enacted by the Parliament. The Commission has no power to make any laws, either by omission or commission, no pun intended. Its only real function is to ensure that those laws are faithfully and conveniently reproduced and published.
To refer again to Mr. Nandlall’s preface, there were four previous unsuccessful attempts to update the Laws and he lavished praise on those who brought the work to finalisation. Maybe in his determination to have the laws published under his watch with fanfare, he and the Commission he chairs overlooked some elementary quality control measures. Nandlall has to own up to his own contribution to the messy state of the laws. He owes the country not only an apology but what he is doing about correcting the several defects.
Question of competence
The low level of competence revealed by the Ministry of Legal Affairs is not new or only referable to the current Attorney General. The Amerindian Act passed in the year 2006 was being administered more than four years before it was brought into force, and only after this omission had been drawn to the Government’s attention. Similarly, the members of the Guyana Energy Authority for several years had been appointed outside of the statutory framework which required publication in the Official Gazette. The apology by the Prime Minister after the omission was drawn to the attention of the government was commendable but there is good reason to believe that the GEA was not an exception.
Once again, the taxpayers are burdened with the cost of incompetence by a governmental entity. No doubt all of those involved were handsomely rewarded, and no doubt too no one would be held responsible for the embarrassing result of their efforts.
Meanwhile, those who purchased copies of the laws must feel particularly aggrieved. In fact they would seem to have a legitimate case for a refund of their money. Those who decided not to expend $825,000 on the laws may feel vindicated.