Category: Letters to the editor

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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.

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Canadian auditor’s suggestion that Sharma be appointed Auditor General was tantamount to improper interference in Guyana’s affairs

Mr Deodat Sharma may not be a proper Auditor General but he surely knows how to play the political game. Last week, the Audit Office which he heads hosted a team of two from the Audit Office of Newfoundland and Labrador (AONL) with which the Guyana Audit Office claims a “twinning partnership.” The website of the AONL indicates no such partnership.

I understand from persons who attended a workshop conducted by the two visitors from Canada that one of them actually sought to advance the case for the confirmation of Mr Sharma who for seven years could not be substantively appointed because of lack of qualifications.

Mr Sharma’s lack of qualifications would likely prevent him from being appointed Audit Manager, much less Audit Principal or Auditor General, in the Newfoundland Audit Office.

In my view, the attempt by the Canadian gentleman was insulting, inappropriate and tantamount to improper interference in the operations of Guyana’s national financial watchdog which no Canadian Audit Office would accept and tolerate for itself.

Here are some interesting statistics. The Auditor General of Newfoundland and Labrador is appointed for a 10 year non-renewable term by the Lieutenant-Governor in Council and confirmed by a resolution of the House of Assembly. (Term limit for Auditors General is a common feature in other countries as well, but not in Guyana.) The Newfoundland Office has less than a quarter of the staff of the Guyana Audit Office – 36 compared with 150 – but while 28 of their staff hold professional accounting designations (78%) only 2 or 3 persons (1.33% or 2%) in the Guyana Audit Office are similarly qualified.

In its work, the Office of the Auditor General of Newfoundland and Labrador complies with the professional and ethical standards established by the Canadian Institute of Chartered Accountants. And according to that Audit Office, they adhere to professional codes of ethics and independence standards; exhibit independence in fact and in appearance; and avoid perceived and real conflicts of interest. In Guyana we aspire to and apply low or no standards.

I do not for one moment however believe that it is only because of lack of qualifications throughout the Guyana Audit Office that it has failed so miserably in unearthing the kind of frauds which the reporters from Kaieteur News and to a lesser extent, the Stabroek News, have been uncovering.

Rather, it is because some of those who hold senior positions cannot afford to jeopardise their position or embarrass the Minister of Finance and the government.

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It is time that Guyana has a proper Auditor General

A recent news item in the print media gave the impression that the appointments of four senior members of the Audit Office’s staff have already been made by the long-acting Auditor General Mr Deodat Sharma. That would conflict with the Audit Act under which any proposed appointment first must have the approval of the Public Accounts Committee.

I am concerned that this attempt by Mr Sharma – which not surprisingly has received the support of the head honchos of the PPP/C members of the Public Accounts Committee – is a precursor for himself to be confirmed. Clearly, if the number two position from which he was moved up is subsequently filled, he cannot then step back into it, if and when a decision is finally made to appoint a qualified Auditor General from outside the Audit Office.

Mr Sharma has many handicaps. The first is that he is does not have the qualification to be the Auditor General. Accordingly, he has to rely on – as his key qualified staff – the wife of the Minister of Finance who is responsible for the country’s public finances generally and solely responsible for the Contingencies Fund.

The lack of that competence that comes with professional training has meant that in the six audit reports on the public accounts Mr. Sharma has issued since he was appointed to act, he could do no better than identify two major issues – the tendering procedures for drug purchases and the fact that the drawings from the Contingencies Fund did not meet the qualifying test. But he did not initiate the disclosures – they were continuing developments identified by his predecessors.

In relation to the Contingencies Fund, his reports consistently misquote the law relating to replenishments – conveniently to the advantage of the Minister – and second and very importantly, he does not report findings on the actual payments. No wonder it takes him more than three months to report on a $90 million expenditure in an engagement in which he is taking a lead role. Such an audit should take a pair of reasonably capable junior auditors properly guided two weeks maximum.

Mr Sharma has made lots of promises before. He promised in the 2009 Audit Report to complete before December 2010 value for money audits of the drug purchases by the Ministry of Health and the tender procedures of the government. Before that he had promised audits of the Cricket World Cup, Carifesta and the 2005 Flood Audit. And of course, he had promised that by end of April 2012 he would have completed the $90 million audit of Contingencies Fund, a promise accepted by the National Assembly.

It is impossible to say whether Mr Sharma is as keen to be confirmed in the job as the government is to have someone who hesitates to go after Mr Ramkarran’s “pervasive corruption.” The compensation package now enjoyed by Mr Sharma is the same as that of the Chief Justice and the Chancellor. It would seem that it is as normal for no one to risk giving up such an undeserved package as it is for no government to appoint, even in an acting capacity, a Chancellor or Chief Justice possessing only a para-legal degree.

The Constitution of Guyana provides that whether as a substantive appointment or acting Auditor General, the appointment of the Auditor General is made by the President acting in accordance with the advice of the Public Service Commission.Whether or not President Ramotar wants to deal with corruption, it is time that Guyana has a proper Auditor General.

Once a substantive Auditor General has been appointed, that person working with the Public Accounts Committee can then address the other senior positions and indeed the rest of the staffing of the Audit Office, including the issue of conflict of interest under the Code of Conduct governing accountants.

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I welcome any opportunity to address steps to make Olympic association more democratic and effective

I believe that many persons with an interest in the development of sports in Guyana are thankful that the Guyana Olympic Association (GOA) has finally given the public an insight into its governance (Page 29, S/N May 6, 2012 – All our statements have been audited). This was done by no less a person than Mr. K. Juman-Yassin, who in his sixteenth year as President of the GOA, reveals that the GOA is one of those rare organisations that have their general meetings once every four years, and rarer still, that submit audited statement of accounts quadrennially.

In so doing, Mr. Juman-Yassin confirms and explains why I was not fortunate to see any such audited statements – I was not in the Guyana Tennis Association (GTA) long enough for one of those special events.

In responding to my statement about access to financial statements, Mr. Juman-Yassin’s contention is that the GOA follows the “rules of its constitution with respect to its financial requirements.” A similar claim can surely be made by the great and beloved North Korean leader about his government.

Mr. Juman-Yassin was very kind not to want to “create any problems” (for whom he did not say), even as he asserts that I “did not attend more than three meetings” of the GOA. That is true and for a very simple reason: the GTA is not a presidential organisation and during my term as President we decided, and communicated to the GOA, that the GTA would be represented at GOA’s meetings by our Secretary. Our representatives were Dr. Steve Surujbally and later Mr. Ramesh Seebarran, now President of the GTA.

In the Stabroek News report under reference, Mr. Juman-Yassin also confirms the procedure at meetings of the council of the GOA: each association briefly reports on its activities since the previous meeting. At none of the meetings I attended was the council asked to make, approve or ratify any decision, action, overseas representation or expenditure by what appears to be a small kitchen Cabinet, including Mr. Ivor O’Brien who I understand has been Secretary General of the GOA for twice as long as Mr. Juman-Yassin has been President! There certainly was no Treasurer’s report or any attempt at serious discussion. If anything, the meetings were perfunctory and represented top-down management at its basest.

Finally, Mr. Juman-Yassin is reported to have said that he has been trying to make contact with me. I would welcome his call as well as copies of the GOA’s most recent financial statements and any opportunity to discuss steps to make the GOA, a national umbrella sports organisation funded by the International Olympic Association, more democratic, effective and open, and one striving to better serve the country’s sportswomen and sportsmen who ought to be the sports administrator’s raison d’être.

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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.