One day before Budget 2021 was presented, the National Assembly passed legislation to amend the Law Reform Commission Act, the principal purpose of which is to keep under review the laws of Guyana for the purpose of their simplification, modernisation, systematic development and reform. Despite having been a Republic for fifty years, Guyana’s jurisprudence is not only heavily influenced by the common law of England but in at least in the case of intellectual property, a UK law which has since been repealed in that country, remains the law of Guyana.
The case for continuous law reform is so obvious that it hardly needs to be stated. Yet, a review of the legislative output over the past two decades shows that our lawmakers have been more pre-occupied with importing sometimes unworkable legislation from the developed countries with their own special legal and cultural landscape than with addressing the social challenges which the country faces. The LGBT community easily comes to mind as the poster child of archaic legislation trampling upon basic human rights.
The number of relatively recent principal and subsidiary legislation imported from abroad with minimal adaptations is borne out by the schedules which accompany Budget Focus. These include: Tobacco Control Act 2017; National Payment System Act 2018; Deposit Insurance Act 2018; Cybercrime Act 2018; Witness Protection Act 2018; and the Interception of Communication Act 2019. If a more dramatic example was needed, we only have to pause to realise that the legal instrument required to deal with the COVID – 19 Pandemic, the Government had to resort to the Public Health Ordinance of 1934!
To add insult to injury, the majority by number of legislations passed annually are simply “amendment Acts” which often serve to entrench and perpetuate old and outdated legislation.
Contrast these with the several critical legislations which through neglect or ignorance have largely fallen into disuse for which ironically, we use the English word desuetude! The country’s only widescale social security scheme has seen very little amendment since its passage in 1969. The same can be said of the Co- operative Societies Act and the Friendly Societies Act, the bedrocks of rural communities for decades prior to our enlightenment. Law must reflect society and must therefore be subject to amendments, replacements, creativity and change. It is foolhardy to assume that the drafters of legislation with their roots in a different time and different place had the divine foresight to legislate for centuries and decades into the future.
It is expected that the Law Reform Commission through its continuous work will remedy this attitude and for this reason we withhold our opinion on its proposed composition. However, we make the following recommendations such change and creativity for Guyana’s future namely:
1. Intellectual Property: Currently such legislation is practically non-existent. We are only too well aware of the theft of the work of our calypsonians and the name Demerara Sugar. As our economy modernizes and to protect our artistes, sportspersons, producers, designers, writers and manufacturers the country needs such legislation.
2. Immigration: Guyana has archaic laws which are not conducive to a modern, open society. We recall for example, the issues with the Haitians, dual citizenship, etc. Robust provisions to encourage expatriates, foreign investors, refugees and asylum seekers to relocate with ease while at the same time having avenues to contribute to Guyana’s economy.
3. Social Security: Performance of true intention of the drafters of the National Insurance and Social Security Act to ensure and not deny the working population of Guyana to receive financial benefits in their old age, and prohibiting the Scheme’s Board from denying claims for the slightest infractions by contributors.
4. Family Law: Removal of fault-based divorce, and greater enforcement of child maintenance and spousal support to secure and protect the family.
5. Co-operatives Societies Act: Ram & McRae believes that co-operatives have a role to play particularly in rural, and close communities. They have largely fallen into disuse and are often associated with poor governance and abuse.
6. Non-Governmental Organisations: When the Companies Act was being reviewed, the intention was to have separate legislation for Non-governmental organisations and not-for profit organisations. More than twenty years later and despite a draft of Insolvency Act being produced for CARICOM countries, there has been no progress.
7. Company Law: Updating provisions on directorships, unanimous shareholders’ agreements, insolvency, winding up, external companies and measures to enhance the governance and management of corporate entities.
Given the backlog of work to be done, the task is indeed formidable and will require considerable professional and technical resources. Pivotal to its success is the availability of persons with the knowledge, the experience and expertise to make up the Commission including a full-time Chairman. Moreover, there are ongoing issues of petroleum, the environment and labour, the latter of which is addressed as another essay in this section.
Unfortunately, the Budget makes inadequate provision for the kind and quality of work that needs to be done and as is the norm, we will turn to the international community and the multilateral financial institutions for help.