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Election year politics?

Crazy columnist
This columnist has not gone mad, at least not yet. I am just mesmerized that Dr Ashni Singh who Manzoor Nadir of the PPP/C/TUF rates as one thousand times better than Peter D’Aguiar as Finance Minister, has finally met the statutory deadline for the annual mid-year report. (For the younger among us Peter D’Aguiar, the first and only [T]UF member trusted with the portfolio of the finance ministry was used and discarded by Burnham.) Singh’s achievement about the report vindicates the surprise I openly expressed last year to the now forgotten call by the Economics Affairs Committee of the National Assembly for an extension of the deadline for the report. Au contraire, Dr Singh proves that he could comfortably live with a shorter period!

More than being timely, the 2011 mid-year report, according to the President, who has traversed the globe in a shorter time than Jules Verne could have imagined, is among the best performing economies in the world with an annualized growth rate of 5.9% and an unemployment rate within striking range of the USA, according to Manzoor Nadir.

The remarkable growth comes, not from the powerful narco-sector of the economy as the doomsayers would have us believe, but mainly from the politically sensitive sugar and rice sectors which prove that even agriculture responds to election year politics. Indeed it shows what any MBA 101 course – citing the Ministry of Agriculture as a case study – would tell us: politics triumphs over incompetence.

Sugar and rice and all things nice
According to the Minister, in the first half of 2011, the Guyanese economy achieved real economic growth of 5.9 per cent with the non-sugar sectors growing by 5 per cent. It was sugar and rice however that were the star performers. Suggesting that after billions of dollars we can get back to the performance levels of 2004, sugar production in the 2011 first crop was 106,871 tonnes, a 30.5 per cent increase over the first crop of 2010, with a little help from an extension of the crop period. While this may affect the quantity of cane available for the second crop, the government seems optimistic that the full year 2011 target of 298,879 tonnes is achievable, perhaps with a procrustean extension of the year.

Rice too has done well with first crop rice production of 207,514 tonnes, 23.3 per cent higher than the corresponding period in 2010 and the highest first crop in the industry’s history. Taking part credit for the sector’s performance, the government claims that the growth in production was attributed mainly to significantly improved drainage and irrigation as a result of government investments, the development of a new and more tolerant rice strain by the Guyana Rice Development Board, higher yields and, most importantly, a higher acreage of paddy planted.

I witnessed some damage to rice along the Essequibo but the Minister of Finance was confident enough to revise the 2011 full-year growth in the industry from 4.9 per cent to 12 per cent.

Grow more pig tail
The Minister reported increased overall production levels in the livestock industry by 2.7 per cent, with increased production “evident” in areas of poultry meat, table eggs, mutton and beef while pork production declined. When one boasts of such sterling performance words like “evident” tend to raise doubts about the reliability of the data. Two other comments before we move on: while the Minister was exulting about sugar, the supermarkets were complaining to the press that they were getting no supplies, a matter about which the Guyana Sugar Corporation appears to have had no knowledge. The second is that while we have an active Grow More Food campaign run by the Ministry of Agriculture, the supermarkets which are springing up at just about every corner of Guyana stock mainly foreign items. My friend Raymond likes to complain that he cannot get local pig-tail and cowheel and is forced to buy those items which are imported from Canada. That surely makes no economic or policy sense and some explanation would normally be warranted.

The fisheries sector seems to be in some decline and recorded a negative growth of 2.2 per cent during the first half of the year, compared with a target of 0.4 per cent over the production performance of 2010. As a result the industry is now projected to contract by 4.7 per cent in the full year.

Green and gold
The forestry sector had a negative growth in the industry of 30.3 per cent as a result of contraction in the production of logs, lumber and roundwood. As a consequence, the sector is now projected to contract by 19.9 per cent by year end compared to an earlier projected contraction of 1.4 per cent.

There are two significant segments to the mining and quarrying sector – bauxite and gold and diamonds. Production of bauxite in first-half 2011 reached a total of 815,505 tonnes, an increase of 38.6 per cent compared to the same period in 2010. However because of the composition of the industry’s output, a higher proportion of lower grade to higher grade product, converts into a sub-sector growth of 13.8 per cent.

Total gold production in the first half of 2011 was 163,413 ounces, an increase of 14.9 per cent over 2010 which was itself an outstanding year. With the incentive of ever higher gold prices, gold production for the year is now projected to reach 320,000 ounces. On the other hand the diamond sub-sector declined in the first half by 19%.

Manufacturing and water
Mainly driven by, but not entirely on account of sugar and rice, the manufacturing sector is recorded as having grown by 10.6 per cent, Given that rice and sugar were expected to grow significantly in any case, it is not clear why the target for the year has been revised upwards from the budgeted 7.7 per cent to a now expected 9.4 per cent.

Owing to significant investments in the electricity and water sector by the government, the sector is estimated to have grown by 2.6 per cent for the comparative half-year. With more planned government investments, the Minister has revised upwards the sector’s projected annual growth rate 0.4 per cent to 2 per cent.

The Minister reported that while the wholesale and retail sector had been projected to grow by 4.4 per cent, the actual for the first half of the year was 21.7 per cent, attributed to him as “buoyed by the growth in sugar, rice and light manufacturing which have fuelled the availability of supplies, increase in imports of food for final consumption, beverages and tobacco, fuels and lubricants, textiles and fabrics, and building materials.” This is a truly remarkable growth and suggests a level of spending power that many would consider beyond the economy’s capacity.

Complementing the other sectors of the economy, the information and communication sector is estimated to have grown by 5.5 per cent in the first half and as a consequence the 2011 budget projection of 5 per cent is retained. Similarly, the Minister estimates that at the end of the first half, the finance and insurance industry had recorded a growth rate of an incredible 16 per cent, with much of this driven by expansion in activity by the commercial banks. Of all the substantial claims made, I would say that this “estimate” is more than mildly exaggerated.

To complete the story of sectoral growth, the education and health and social services recorded estimated growth of 3 and 3.4 per cent respectively for the first half. In his 2011 Budget Speech the Minister did not announce the growth projected for these sub-sectors but in his mid-year report he announced that their budget growth projections for the full year have been revised to 1.5 per cent and 1.9 per cent, respectively.

Next week we will look at the balance of payments and some of the monetary environment in which the economy performed.

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WikiLeaks and Teixeira

The PPP leadership and indeed others are in a serious quandary over the WikiLeaks cables. These cables allow ordinary Guyanese a unique fly-on-the-wall view of the dangerous extent to which our state has become criminalized under the Jagdeo government while various officials and their friends have amassed considerable and inexplicable fortunes at the expense of the ordinary citizens.

These cables are not the product of amateurism or individual style. They are well structured, classified and sourced. Yet, following the publication in the media of a cable that revealed some collaboration between her and the US Embassy in Guyana, then Home Affairs Minister Gail Teixeira described its contents as “two-thirds” opinion without saying which third was factual. Her political boss refers to the cables as “impressions” while Dr Luncheon, reflecting his recent courtroom experiences refers to them as “hearsay.” Perhaps unable to grasp the significance of the revelations, presidential aspirant Donald Ramotar found them “slightly amusing.”

Let us examine a December 28, 2005 cable reporting on a meeting Ms Teixeira had with the US officials. It contains a Reference ID, date of creation, classification and origin, ie, the particular embassy. This is then followed by a summary which for the meeting Ms Teixeira had with the US officers on December 23, 2005 reads as follows:

“SUMMARY. Charge, Deputy Consul, and Pol. Off met with Minister of Home Affairs Gail Teixeira on December 23.

“Teixeira had requested a Consular briefing on trends in fake Guyanese civil documents detected by the Consular Section.

“Teixeira also described problems with control of the visa process in Guyana’s foreign missions… Teixeira also discussed voter registration problems that continue to dog the Ministry of Home Affairs (MHA) (septel). END SUMMARY.”

Here is a summary of the contents of the cable under the six captions identified therein.

1. No Control Over Birth, Marriage Registrations

Indicating that Ms Teixeira met with the US Embassy as recently as one month earlier, the first paragraph under the caption starts as follows: “Teixeira had asked Ambassador last month to send a Consular Officer to brief her on fraudulent birth and marriage certificates issued by the General Register Office (GRO) that had been detected by the Consular Section.”

2. Trying to Control Who Comes In and Who Stays Out

This caption begins with the following factual assertion: “Teixeira mentioned several suspicious visa cases on her plate.” The section also included the following direct quotes:

“a) However, she did suggest twice that her relationship with the Delhi Embassy was dictated by orders from higher authority.

“b) Teixeira said one of Guyana’s embassies and two honorary consuls in particular, are now her biggest problems on the visa front; and

“c) In Teixeira’s words, Guyana does not have an immigration policy. There is little control over visa issuance.”

3. Corruption Interferes Constantly

Under this caption Ms Teixeira is quoted as acknowledging there “was quite a lot of corruption in the immigration division,” and that a former advisor is “very closely linked to a number of networks, particularly the Chinese.” She is reported as describing “a slush fund financed by Brazilian fees for work permits that [two officials] had run. Unable to pin any direct evidence of illegal activity on [one of them], Teixeira said she had dealt with him by sending him on long-term leave.”

Ms Teixeira is further reported as stating that “while corruption also existed in the police force and GRO, the corruption of justices and magistrates was the most worrying. She said all Guyanese know which cases, magistrates, and lawyers are tainted by corruption. As a result, the government cannot win important convictions. Similarly, she said everyone knows who the ‘drug lawyers’ are, but the local bar association is too feeble to disbar anyone.”

4. Still Uneasy about American Religious Groups and Airstrips

This caption briefly addresses the Seventh Day Aviation medical group operating in Guyana and possible contamination of Amerindian communities by American religious groups.

5. Request for Assistance [by Ms. Teixeira]

The cable states that “Teixeira made two requests for assistance.” These were for 1) “computeriz[ing] the civil document process … and creat[ing] scanned archival copies of all old records” and 2) “auditing the GRO’s internal control procedures.”

6. Comments

In two closing paragraphs the cable expresses opinions including that “Teixeira criticizes her predecessor Gajraj’s imperious, direct control over the Ministry’s workings, [but] she has only slightly loosened the reins of control herself.” The cable ends with the unflattering but not unfair assessment that “more than a few Guyanese insiders think of her as a lightweight better suited to her previous position as Minister of Youth, Culture, and Sport.”

Not only does this cable debunk Ms Teixeira’s statement about two-thirds being “opinion” but it also raises the possibility of another extremely serious matter which she herself brooked with Stabroek News in an article on September 4. She said that she is “known for not disclosing internal party or government matters to outsiders.” Known to whom and in any case in one fell swoop, as evidenced by a single cable, she appears to have done quite a bit of disclosing.

While I am not surprised that under President Jagdeo’s dysfunctional administration the Ministry of Foreign Affairs was excluded from a request for foreign assistance, it is of concern that Ms Teixeira was not accompanied at the meeting by a representative from her ministry. Moreover, it requires some explanation that a minister of the government could be so friendly with a foreign state to which her boss was often openly antagonistic. Maybe Ms Teixeira considered her relationship with the US so special as to exclude them from her noble policy of “not disclosing internal party or government matters to outsiders.”

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The problem of unincorporated associations

Introduction
Last Monday, August 29, I indicated in a letter to SN captioned ‘Nothing illegal about unincorporated bodies operating by the rules’ that I would be reviewing in today’s column the court’s decision in the case brought by the Secretary of the Berbice Cricket Board against the Guyana Cricket Board. The Chief Justice gave the parties short shrift on the grounds that all the parties were legal non-entities and that the court was not the proper forum or avenue for any relief or redress involving the Guyana Cricket Board or any of its three county boards which make up its membership. In my letter I expressed the need to dispel the myth or fear created by Mr Claude Raphael who had attributed to the Chief Justice a statement that the boards were illegal. I am glad to say that the Chief Justice at no point in his judgment described the boards as illegal as claimed by Mr Raphael.

Judgement
Having said that, it is necessary to state that there was in substance as much jurisprudence and law as there were policy and politics in the judgment. Maybe given the continuing saga of the rival boards and factions that have been fighting for control of cricket in Guyana, the Chief Justice was left with no choice but to tell the parties that they have no place in the court-house. But the judgment went beyond issues of locus and into discussions on what were described as matters “of national and general public interest.” For a jurist that is a slippery slope and on page 9, for example, the Chief Justice ventured that because there exists a Ministry of Culture, Youth and Sport responsible for sports in general, “the State has assumed executive responsibility for the welfare, promotion and proper administration of sports in Guyana.”

What the Chief Justice found was that the members of the Guyana Cricket Board were themselves unincorporated entities and therefore incapable of suing and being sued in their own names. Flowing from the non-legal status of the GCB the Chief Justice ruled that the court could not recognise the election of office bearers within that association. He noted that the position would have been different if the membership of the GCB had comprised of persons. In the view of the Chief Justice it “is difficult to see how those member associations could have sent delegates to vote at the GCB elections since their members were not persons but rather legally non-existent persons.”

In the circumstances the Chief Justice noted that while a legislative structure for the administration is desirable there is need for the intervention of the Minister of Sport to “impose his executive will in the national interest.” That solution appears to have been music to the ears of the President who within two days of the judgment moved to impose executive management of cricket in Guyana. This should be contrasted with the reactions in relation to recommendations coming out of the courts on constitutionally important issues such as the television case in Linden or the payment of damages to the teen who was tortured at the Leonora Police Station.

Unincorporated associations
Now what really is the position of unincorporated associations whether in Guyana and in other common law countries? This question was extensively considered in a report done by the Scottish Law Commission from which this column has extensively drawn. This column’s interest in the topic is a recognition of the large number of unincorporated entities in Guyana with two principal characteristics:

(i) as the name suggests, the association is not a body corporate which is incorporated under the Companies Acts or otherwise;

(ii) the association exists for a purpose other than the making of profit for its members, thus distinguishing it from a partnership or joint venture.

Because of these characteristics, unincorporated entities, together with charities are sometimes collectively referred to as the “Third Sector.” Unlike companies, statutory bodies and friendly societies, the law relating to unincorporated associations rests upon common law with the most striking feature being the absence of legal personality accorded to associations and clubs which do not choose to establish themselves as companies or as some other form of incorporated body.

Set out below are the principal problems encountered by unincorporated associations and which persons connected with these bodies need to familiarize themselves:

They have no capacity to enter into contracts. Contractual responsibilities must be undertaken by individual office-bearers or, possibly individual association members.

This restriction extends beyond contracts with third parties but also to contract with one of its own members. They cannot be held liable for wrongful acts committed by their representatives while acting on behalf of the association. Liability rests upon the individual personally responsible for the loss sustained, but it is not clear whether liability – possibly beyond the value of the association’s funds – also rests upon office-bearers or the whole association membership.

A member cannot sue for damages for injury sustained as a consequence of a wrongful act committed by an office-bearer or fellow member while acting on behalf of the association. This, it has repeatedly been asserted, would be tantamount to the injured member suing himself.

They cannot own property. Title must instead be taken in the name of individual members or office-bearers as trustees, necessitating further transfers when such members or office-bearers die or cease to participate in the association’s activities.

This does not however make them illegal. Indeed many laws proceed upon the (strictly false) assumption that an unincorporated association has some form of existence in law. The Companies Act for example requires foreign unincorporated entities seeking to do business in Guyana to register as an external company. The Corporation Tax Act, the Income tax Act, the National Insurance Act and employment legislation all deal with these associations as if they were legal persons.

Absence of recommendations
One of my disappointments in the ruling by the Chief Justice was the absence of any recommendations on addressing the unsatisfactory state on unincorporated associations. Admittedly the boards which had been before him had their attorneys to advise them but could the Chief Justice not have suggested how the vacuum in the law relating to unincorporated associations should be addressed? Or is it that he does not believe that the Third Sector is a matter of national interest and as Mr Claude Raphael demonstrated, the CJ’s ruling has been misunderstood and/or miscommunicated by members of the community. What makes it more unfortunate is that this was not the first time that the cricket boards were coming before the courts. Was cricket of any less national interest then that the court did not feel compelled to make the kind of sweeping recommendation that it made in the current case? While it is true that cricket should not have been thrown into this legal vacuum without any lifeline, the same acknowledgment should have been given to the boards which continue to play an important role in the national sport.

In venturing as it did on policy and executive matters the court gave the government complete latitude in deciding on how long it will control cricket, the terms of reference of whatever body is considered appropriate and the inclusion or exclusion of identified interested parties. Having given its decision in the matter would the court be concerned with the consequences of its decision or has it washed its hands of the matter? The landscape in Guyana is occupied by many temporary bodies, notably GuySuCo’s interim Board which the Minister of Agriculture has assessed as incapable of managing the corporation’s most important asset, and the various extended local government bodies which – for whatever reason – are not doing an impressive job.

Guyana law provides various legal forms, including incorporation by way of an Act of Parliament, that might not have been inappropriate in the case of cricket and perhaps other national sports bodies. Then there is the Companies Act under which even one person can incorporate a company, which should be contrasted with the Friendly Societies Act which requires a minimum of seven persons. What reduces the efficacy of the Companies Act in terms of the not-for-profit organization is that the form of company most appropriate for such organizations – the company limited by guarantee – was abolished when the 1991 Act came into force in 1995, and which despite pleas from the Third Sector has not been substituted. This column can do no better than repeat the call not only for the restoration of the company limited by guarantee, but also for a Charities Act. It is instructive that the England and Wales Cricket Board is incorporated as a company limited by guarantee. The partnership form is inappropriate unless the partnership is a for profit arrangement. Of course, the partnership is, like the unincorporated association, without a legal personality of its own but must register under the Business Name (Registrations) Act.

Conclusion
The cricket boards would need to consult on regularizing their own legal status and that of their members. Whatever they do, however, it is clear that the law relating to unincorporated associations generally is not satisfactory and the various arms of the state should join in bringing forward recommendations so as not to leave the law in its present state. An obvious solution is to confer legal personality on unincorporated associations under defined circumstances. What are these conditions? Here is a wrapped-up recommendation which I have copied from the Scots.
The main conditions for attribution of separate legal personality should be that a body has adopted a constitutive document which includes the following matters:

(a) the name of the body;
(b) the purpose for which it exists;
(c) the criteria for membership;
(d) procedures for election or appointment of those managing the body (including office-bearers, if any);
(e) powers and duties of office-bearers (if any);
(f) distribution of the assets of the body in the event of dissolution; and
(g) procedure for amendment of the constitutive

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Nothing illegal about unincorporated bodies operating by the rules

Mr. Claude Raphael writing in yesterday’s Sunday Stabroek `Government should be supported in its proposal re GCB’ as `Former Chairman Snr. Selection (cricket) Panel’ has written in support of President Jagdeo’s intervention in the on-going saga of cricket maladministration in Guyana. In so doing Mr. Raphael makes a number of sweeping statements including pronouncements attributed to Chief Justice (ag.) Ian Chang in a decision the latter handed down in the internecine Cricket Board dispute which came before him.

The status of unincorporated entities is far from the straightforward “non-entity” that Mr. Raphael says the Chief Justice deemed them, let alone being illegal, which is far from the case. In this coming Sunday’s Business Page I will review the court’s decision but for now I think it useful that we dispel the myth or fear created by Mr. Raphael’s letter that all those unincorporated entities which have been operating and doing excellent work in Guyana are somehow illegal.

Whilst there are certain juridical limitations imposed on unincorporated entities, once the directors or the management committee members, by whatever name called, are operating within the constitution or by-laws of their organization and the general laws of the country such as noise nuisance, taxation etc., there is nothing illegal about them. They need not fear the police coming after them, or being sued in a civil matter. Let me make a brief comparison: minors also have similar juridical incapacities but illegal they surely are not.

Finally, I wonder the extent to which Mr. Raphael may have been a directly interested party in the court matter and even more pointedly whether the cricket club(s) to which he belongs, or entities on which he would have served in a senior capacity for many years, were “illegal” unincorporated entities.

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Surge

Introduction
Two very important pieces of legislation to which the Jagdeo administration had committed itself are now before Special Select Committees of the National Assembly working feverishly overtime to ensure that this legislation is passed before the Ninth Parliament comes to an end. The two are the Access to Information Bill 2011 and the Telecommunications Bill 2010. A third issue being addressed by a Select Committee is one dealing with campaign financing introduced by AFC prime ministerial candidate Sheila Holder, although it is reportedly receiving little support from the PPP/C which with the resources of the state at its disposal seems to have little interest in such esoteric matters.

In today’s column I will consider the Access to Information Bill and begin a review of the Telecommunications Bill which I believe has a number of implications even beyond the development of the telecommunications sector and by extension the rest of Guyana. When these two Bills emerge from their respective select committees they will not have had the full benefit of the parliamentary opposition because it opposed the deferment of the recess by the government, which is determined to ensure that the two bills are passed and assented to by President Jagdeo before he leaves office.

Access to information and campaign financing were two of the areas on which US President Carter might have thought he had had some kind of commitment from President Jagdeo when he left Guyana in 2003. Indeed President Carter, whose Center had spent years and millions of dollars on the now forgotten National Development Strategy, in his parting press statement on August 19, 2004 – a full seven years ago – noted that he had offered his Center’s technical and financial resources to the Government of Guyana in developing access to information and political campaign financing legislation.

Access to Information
Last Friday I appeared before the Special Select Committee on the Access to Information Bill to which I had earlier made a written submission. Based on some research on similar legislation particularly that closer to home I am convinced that our Bill serves no purpose other than to say we have access to information legislation. The whole structure of the Bill is wrong: only one of seven directors is to be appointed on the recommendation of the Leader of the Opposition; the control of information is in the hands of a single political appointee; there is no provision for an oversight mechanism; the only effective complaint mechanism is the High Court; the information czar is allowed a period of thirty days of receipt of a request merely to acknowledge it and sixty days to advise the applicant if the request is approved or denied. On top of these the Bill provides for so many exemptions that I would be surprised if it will ever be used by more than a dozen or so persons annually.

Systemic problems
As I reflected on my past experiences with select committees there are at least five problems that struck me concerning the formulation of legislation in Guyana. The first is the adversarial nature our parliamentary culture which extends to the select committees. This culture places persons and citizens in rival camps and the camp becomes more important than the contribution or the message. This would mean that if a submission comes from Clive Thomas or a Christopher Ram it must be rejected since that is considered as yielding in to the “opposition.”

The second which derives partly from the first is that a Bill is either a government Bill or an opposition Bill. If the Bill comes from the opposition, as sometimes happens, the government members of the select committee feel compelled to oppose it. If it is a government Bill, the government members likewise are compelled to support it – even if it or any part of it offends their principles or their intellect. For example there are several pieces of legislation that have passed through select committees and the National Assembly which seem to be unconstitutional. I cannot accept that an Anil Nandlall or a Raphael Trotman who are on the Access to Information Select Committee would not be aware of such instances, and possibly in respect of the Access to Information Bill they are considering. I would, under normal circumstances, expect them to say to the Chairperson: “We cannot support such or such a clause and if the weight of the majority still goes against our knowledge and principles we will produce a minority report.”

The third is the system we have adopted in preparing for legislation. In the Westminster model, governments intending to introduce important pieces of legislation would issue a Green Paper, which is a statement by the government on a particular topic setting out propositions to the nation for discussion. My information is that that used to be done here but we have thrown away the baby with the bath water and by the time a Bill is presented it is the party’s Bill and the party line must be followed. That hardly results in good policy or legislation.

The fourth problem appeared ironic in the context of the ATI Bill. One of the principles recommended by the International NGO Article 19, is that meetings of governing bodies – which should obviously include the National Assembly and its committees – must be open to the public. When I pointed this principle out on Friday, Ms Gail Teixeira, acting Chairperson of the Select Committee, with a straight face sought to inform me that the National Assembly recently voted to keep such meetings private. Perhaps the irony of her statement and the occasion escaped the country’s governance czar.

The fifth and final one is that we still have legislation that is premised on the fundamental assumption that “we” will always be in power. The PPP/C it seems has not learnt from the PNCR’s lesson that your own rod whips you hardest. The constitution that they passed when they enjoyed the fruits of power is now their biggest obstacle to preventing the excesses of their successor. The time may come when the PPP/C in opposition may need information. Then they will know how flawed, lopsided and undemocratic the present draft of the Access to Information Bill really is.

Telecommunications Bill
This Bill has as much importance to foreign investment, technology and development as the Access to Information Bill has to freedom of speech, democracy and governance. But with the opposition parties no longer taking part in any parliamentary activities the government is once again likely to push this Bill through the National Assembly. Whatever may be the government’s intention in bringing the Bill at this late stage, it must also be counting on receiving much public support; one of the Bill’s effects is the end of the monopoly which GT&T has enjoyed for twenty years under an agreement its parent company entered into with the Hoyte administration.

The Bill is a huge piece of legislation extending to ninety-five clauses. Yet perhaps the most important effect is included or addressed only by implication and that is GT&T’s monopoly over key segments of the telecommunications sector.

This monopoly goes back to 1991 when it was granted to ATN as an inducement to have them buy an 80% stake in the then Guyana Telecommunications Corporation. Monopolies are of course “utterly void” under our Civil Law Act, which is second only to the country’s constitution in terms of legal significance. (That Act saw the country breaking away from Roman-Dutch law and adopting, with a few exceptions, the civil law of England.) Yet, the matter is not so simple and GT&T will naturally seek to protect what they consider their rights.

The Explanatory Memorandum to the Bill states that it “provides for an open, liberalised and competitive telecommunication sector that will be attractive to new market entrants and investors, while preserving the activities of the current sector participants.” I doubt whether GT&T is likely to share that view not only because it impliedly loses its monopoly, but also because it gives favoured treatment to some of the President’s friends..

The Explanatory Memorandum goes on to state that it seeks to “creat[e] a competitive environment for telecommunications [which] is expected to result in greater choice, better quality of service and lower prices for consumers. To further national and regional social and economic development, the Bill also specifically addresses the expansion of telecommunications networks and services into unserved and underserved areas through the institution of a new universal access/universal services programme.”

It also states that along with consequential amendments to the Public Utilities Commission Act 1999 which has also been introduced in the National Assembly and regulations expected to be published once the Bill is assented to, the country will have a clear, harmonized framework and a level playing field for the sector that is lacking in the current laws.” It expects that these would bring us in line with “other countries in the world, including most Caribbean countries”.

The authors are confident that the legal framework inherent in the Bill will provide for transparency and non-discrimination in the issuance and monitoring of licences and authorisations to use the spectrum; seamless interconnection and access between and among telecommunications networks and services; and price regulation where required to ensure competition and protect consumers.

Next week I will examine the extent to which these objectives are reflected in the Bill and consider the implications – legal and otherwise – of the state’s attempt to remove unilaterally the right of the company to have its exclusive licence extended.