It was representation from the accounting and legal communities that resulted in significant changes in the local content law and Attorney General Anil Nandlall says that crafting legislation for the new oil sector will take time to perfect.
However, the Attorney General pointed out that some areas cannot be exclusively 100 per cent local content.
“This bill continues to be a work in progress. It was a very difficult exercise in arriving at a measurement in local capacity, in particular since we have never done a formal assessment of local capacity in almost any of the given areas that are the subject of the legislation,” Nandlall told the Sunday Stabroek.
He said for this reason careful attention was paid to insert “local” in front of accounting and legal services to give explicit meaning to in-country service provisions, since those services are also done abroad.
“If you look at the first formulation of language, you will not see the word local when it was 20 per cent because with accounting services it is quite possible that a lot of it was done outside of Guyana and would have been of such a nature that we may not have had the capacity to do it. After protracted engagement with the accounting and legal profession, because they [legal profession] had a very small percentage too, we decided as a compromise to insert the prefix ‘local’ in front of the words ‘accounting services’ and ‘local’ in front of ‘legal services,’” he explained.
“This means that all accounting services that are to be done locally, 90 per cent must be local content, and legal services, similarly” he added.
When the Principal Act was passed late last month, a key amendment allowed for an increase in the work provision percentages for local accounting and insurance services.
It inserted the word “local” immediately after “Accounting services” giving the guidelines a new meaning and had the work provision percentage substituted from 20% to 90%. Similarly, as it relates to the Local Insurance Services guidelines, the bill amends the work provision percentage from 90% to 100%.
Nandlall explained that because of the specialized nature of works, some of the accounting services will have to be sourced from abroad and the oil firms are “free to do that.” “These operations are huge and complex and are carried out in different parts of the world, although they relate to petroleum production in Guyana,” Nandlall noted.
With legal services, the Attorney General emphasised that what should be underscored also, is that unlike any other profession, a person, which includes a company, has a right to retain and instruct an attorney at law of his or her choice.
The Attorney General and the Guyana Bar Association have been at loggerheads over consultations and the percentage quota allocated in the law for legal services here.
The Bar Association has maintained that the Bill should have catered for legal services for local attorneys at 100% as opposed to the current 90%.
When Nandlall had made his presentation in parliament on the bill, he had given the impression that Guyanese legal practitioners do not have the capacity to handle some matters which he described as “technical legal documents” and “joint venture agreements” and this had earned him a sharp rebuke the next day.
To add to the contention, the Bar Council had issued a further response based on remarks that were made by Nandlall and two other officials – Bobby Gossai and Michael Munroe – on the programme “Parliamentary Update” on the evening of Wednesday, December 29.
Noting that it is not its practice to issue a further statement having previously stated its position, the Bar Council said that the statements by the trio “by necessity require a departure from the normal practice of the Bar, primarily due to their blatant and manifest retreat from factual occurrences.”
The Bar Council said that the trio had conflated the issues and noted that there is very little if any point in consultation if the representation is in effect ignored, particularly where the question of ability to carry out a function is the subject of opinion and derogatory remarks in relation to the skill involved.
“With regard to the latter, we note that the statements of the Hon. Attorney General in this regard appear to be based on personal opinion and not that of independent assessment. The repetition of, and not withdrawal or apology for the insulting, offensive and disrespectful remarks towards the competency of the Guyana Bar, while not surprising is nevertheless unfortunate,” the Bar Council stated.
It maintained that there is no justification for legal services to be anything other than 100% (mandatory).
“The promise of continued engagement and review of the percentage target is of little comfort in the face of the breach of prior undertaking and display of mal fides. The Bar Association will accordingly continue to take all steps to ensure the protection of the Guyana Bar and upholding of the Rule of Law,” the statement asserted.
Nandlall in response told the Sunday Stabroek that the point he tried to hammer home was misconstrued as he was not attacking the competence of his local colleagues but wanted to make clear that provision had to be made so there is no legal complexity and feels the Bar Association “lost the issue” when it raised objections to the Bill.
He reminded that every attorney here knows that a person has the right to choose the legal representative of their choice as a fundamental right.
“That right is codified as fundamental right of freedom under the Constitution of Guyana. In that way, he said, that attorney doesn’t have to come from Guyana but “provided that they who are chosen are authorized and qualified to practice law in Guyana.”
