Attorney and analyst Christopher Ram says the revised Laws of Guyana unveiled in March this year to much fanfare are missing key elements and are incorrect in other areas.
In his latest blog on chrisram.net, Ram suggested two options, completing the key omissions: a chronological list of the Acts, an index and a table of contents or an “immediate and competent” review of the eighteen volumes of the Laws of Guyana to ensure that they are complete and correct.
The laws had been updated up to December 31, 2010 under an Inter-Ameri-can Development Bank-funded project.
Ram said that 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 relates to 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 omitted pertain to 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.
Ram said he considered the distinction in the two sets of laws which could be omitted worthy of note as in relation to the second set of laws, i.e. d), e) and f), a list of such laws must be included in the Laws of Guyana. He said that this would enable all users, including judges, magistrates and court officials, legal practitioners and the public to have a complete picture of the current laws of the country. No such list is in the current laws, Ram said.
According to Ram, in the new Laws of Guyana, a note on 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”. He said that the Law Commission apparently did not think it necessary to include the not inconsiderable list of the omitted subsidiary legislation which apply until the new subsidiary legislation is published.
Similarly, he said that in relation to the forestry sector, a note on Subsidiary Legislation states: “The Forests Regula-tions 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, Ram argued.
Ram, also a chartered accountant, said that 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”, Ram said.
At the presentation of the new laws in March of this year, former Justice of Appeal Claudette Singh, the Coordinator of the Modernisation of the Justice Administration System project, had said that the delay in the updating exercise was as a result of the gross underestimation of the subsidiary legislation.
“The updating of the subsidiary legislation proved to be very tedious but with great determination the task was confronted and conquered,” she said. Each set of the laws, she noted, now consists of 18 volumes of the substantive and subsidiary legislation.
Singh further said that due to the amount of work, the index was still being prepared and would be out shortly to be placed in volume one.
Does not appear
Ram pointed to other problems. The National Accreditation Council Act of 2004 does not appear in the current laws despite the fact that it was never repealed and therefore, he said, the Council continues to operate within the framework of a non-existent law. Ram said that over the past several weeks he had reviewed a number of pieces of legislation.
“Almost without exception there 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?”, Ram queried.
Referring to the omissions, Ram noted that In his preface to the revised Laws, Attorney General and Chairman of the Law Revision Commission, Anil Nandlall said that subject to the exceptions specified in or subsequently authorized under section 8 of the Law Revision Act, the edition included all enactments in force in Guyana. Noting that Nandlall had said that a law revision unit has been established for constant updating of the laws, Ram said a more basic task was to rectify the problems in the revised laws.
“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 (Law Review) 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”, Ram asserted.
Pointing out that Nandlall’s preface had cited four previous unsuccessful attempts to update the laws and he had praised the current effort which led to completion, Ram said the low level of competence of the Ministry of Legal Affairs was not new or only applicable to the present 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”, Ram said.
He lamented that once again taxpayers will be burdened with the cost of incompetence by a governmental entity. He said that those who purchased copies of the laws at a cost of $825,000 must feel particularly aggrieved.
