Dear Editor,
On the 29th of June 2022, in the Stabroek News, a letter to the Editor, captioned “Gov’t rejected sensible amendments to the Local Content bill”, written by Mr. David Patterson, MP, was published. The letter contained a slew of factual and legal inaccuracies. My busy schedule prevented me from traversing this wanton menu of errors so boldly asserted. Mr. Patterson refused to acknowledge that only the night before the Local Content Bill was tabled in the National Assembly, the APNU/AFC submitted fourteen (14) proposed amendments to the Bill of which ten (10) were accepted by the Government, moved by the Minister of Natural Resources, Vickram Bharrat, and included in the Bill. This glaring omission was exacerbated by an accusation by Mr. Patterson that our Government lacks inclusivity. I digress here momentarily to challenge Mr. Patterson to identify a single piece of legislation tabled in their five (5) years of Government in which the Opposition was allowed any input by way of amendments.
Mr. Patterson took umbrage to the fact that in the Act, we did not confine Guyanese nationals to citizenry by birth. He is correct. This were among proposed amendments of theirs which we rejected. Mr. Patterson is obviously unaware that our supreme law defines who is or is qualified to be registered as a citizen of Guyana. Any law which purports to restrict or is inconsistent with that definition will run afoul of the Constitution and shall be void to the extent of that inconsistency. Article 8 of the Constitution provides: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.” More fundamentally, Article 149 of our Constitution prohibits discrimination. Article 149(1) of the Constitution provides, inter alia,: “Subject to the provisions of this article – (a) no law shall make any provision that is discriminatory either of itself or in its effect; and (b) no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.”
In the circumstances, were we to adopt Mr. Patterson’s proposals, the Local Content Act would have been in violent tension and conflict with the Constitution. “The New immigration Policy” for which Mr. Patterson advocates would suffer a similar fate. Mr. Patterson also took umbrage to the speed with which Mr. Deepak Lall was “approved for citizenship”. Again, a lack of learning underlies this contention. By his heritage, Mr. Lall is a Guyanese citizen from birth. He simply had to register that citizenship with the relevant authority: Article 44 of the Constitution provides: “A person born outside Guyana after the commencement of this Constitution shall become a citizen of Guyana at the date of his or her birth if at that date his or her father or his or her mother is a citizen of Guyana….” Mr. Patterson further admonishes us for not limiting the length of contracts within the sector to three (3) years. It is a basic tenet and a fundamental building block of the English common law that parties, having full capacity, have the freedom to contract with whom they want and on whatever terms they choose. Though this freedom is not absolute, the exigencies of the petroleum industry should dictate the length of the contracts entered into by the Licencees, Contractors and Sub-contractors. It is not a policy of our Government to stifle freedom to contract by legislation. It is indeed policies of that type pursued by the Coalition that placed them on the Opposition benches in the National Assembly.
Mr. Patterson next criticizes the Act for not providing a right of appeal in respect of any application rejected. This was a conscious omission. The intent was to avoid administrative bureaucracy as far as possible, full well recognizing that a genuine challenge will eventually wind its way into the judiciary. The drafter was alive to the provisions of the Judicial Review Act. Under section 3 of the Judicial Review Act, Cap. 3:06, any person who is adversely affected by an administrative act or omission of anybody which affects public law rights, obligations or expectations may apply to the court for judicial review. Further, under section 15 of the Act, a person adversely affected by an administrative decision may request reasons for that decision and must be provided with those reasons if that request was made within fourteen (14) days of the decision. Therefore, there was no need to burden the Local Content Act with such an unusual bureaucracy specifically dealt with by the Judicial Review Act. As fate would have it, this is the very Act, under which the lawyers for the company relied in their request for reasons regarding the rejection of their application. As regards the allegations of violation with the Treaty of Chaguaramas, the Government’s position was elaborately articulated for the public record. I consider it unnecessary to be repetitive.
Sincerely,
Mohabir Anil Nandlall, SC, MP,
Attorney General and Minister of Legal Affairs of Guyana
