Barring the passage of a law, the National Assembly had no legal basis to direct government’s holding company NICIL and a motion approved by APNU and AFC in 2012 was not legally enforceable, according to advice given to NICIL in 2013 by attorney Ronald Burch-Smith.
“The National Assembly by Resolution No. 32 of 2012 has offered an opinion on how it views the decision making process or decisions made by the Executive. It is free to do so. Its opinion does not have the force of law and does not compel any compliance by NICIL or AHI or indeed the Minister, as an appointee of the Executive,” Burch-Smith wrote.
“For the National Assembly to cause a legally enforceable direction to be given to NICIL and AHI, it would have to propose and approve a bill. For such a bill to become law, the assent of the President is required,” he said, according to his advice, a copy of which was obtained by Stabroek News.
Whether NICIL was required to obey the Resolution has been hotly debated as government probes the controversial holding company. NICIL’s Executive Director Winston Brassington and his deputy Marcia Nadir-Sharma were recently sent on leave and files turned over to the police. Brassington has denied breaking any laws.
The December 2012 motion in the name of AFC leader Khemraj Ramjattan had resolved that no further expenditure be incurred by the National Industrial and Commercial Investment Ltd (NICIL) or its subsidiary Atlantic Hotels Incorporated (AHI) on the Marriott Hotel project without the authorisation and approval of the National Assembly. It also sought to require NICIL to pay over to the Consolidated Fund “all revenues and proceeds from the sale of all State properties, except for those necessary administrative costs for maintaining and running its operations annually.”
In his report on NICIL recently, forensic auditor Anand Goolsarran had recommended disciplinary action against all those responsible for ignoring the resolution approved by the House which was controlled by the joint opposition at the time.
NICIL had responded that it is not aware of any law which “provides or subjects NICIL to the compliance of a motion of Parliament.”
Goolsarran, in turn, had emphasized that NICIL is not only a fully owned government company but also Section 5 of the Public Corporations Act of 1988 has been made to apply to it.
In light of this, NICIL should have complied with the wishes of the National Assembly unless legal advice suggests otherwise, he had said in his report.
Following the passage of the Resolution, legal advice was sought by NICIL from Burch-Smith and on January 23, 2013, he wrote to Brassington saying that since Resolution No. 32 “is not and cannot be legislation, it does not in any legally binding or enforceable manner, compel action or restrain action by NICIL or Atlantic Hotels Inc.”
According to Burch-Smith, NICIL as a limited liability company regulated by the Companies Act is directed by the Executive of the country through its board of directors. Through the doctrine of the separation of powers, its non-judicial or non-legislative authority rests in the executive, he said.
The attorney pointed out that Article 99 of the Constitution provides that “the executive authority of Guyana shall be vested in the President and subject to the provisions of this Constitution, may be exercised by him either directly or through officers subordinate to him.”
In this light, he argued that officers authorised by the president are authorised to operate NICIL. “…In the absence of some law giving the National Assembly other authority over that entity, a Resolution of the National Assembly is not binding on that entity but remains a mere opinion,” Burch-Smith wrote.
He argued that Section 23 of the of the Public Corporations Act does not apply to NICIL, even as he pointed out that the National Assembly in passing Section 23(7) of the Public Corporations Act “clearly contemplated” the handling of revenues by such entities outside the Consolidated Fund.
“If it was understood that corporations and limited liability companies were required to pay all their revenue into the Consolidated Finance there would be no need for Section 23(7). Indeed there would be no reason to allow the Government or the State to operate Corporations or form limited liability companies such as NICIL,” Burch-Smith said.
Following Goolsarran’s audit report, Minister of State Joseph Harmon last week said Brassington and Nadir-Sharma were sent on leave to facilitate investigations by the Guyana Police Force and the Special Organized Crime Unit.
“In Cabinet’s view there is sufficient information, provided in the report to the agencies, for them to explore further and basically dig deeper,” Harmon had said.
Goolsarran, among other things, had recommended criminal and/or disciplinary action against all those responsible for the interception of state revenues totalling $26.858 billion in violation of the constitution. Goolsarran had said that several laws were broken.
Brassington has rejected many of the assertions contained in Goolsarran’s report.
“As far as I know, and in good faith, I have not broken any laws and if Mr Goolsarran is suggesting it, then I believe I have a clear defence on why what we did was properly done and we should not be held responsible and the only way this matter can be determined is if this matter goes to court and be heard and no one has ever challenged us,” he told reporters at a press conference at his office. He added that Goolsarran’s comments were not backed up by evidence and the audit report did not take into account NICIL’s comments.
“A lot of what is being said by Mr Goolsarran are opinions of a legal nature which are not backed up by evidence. On the other hand, we have many years of practice where these things have been happening. We have legal opinions that state that we are within our jurisdiction to conduct these transactions, we have clean audit reports for many years which indicated that NICIL’s accounts were prepared in accordance with proper accounting standards, audited and we have clean opinions,” Brassington declared.
