AG challenges Opposition to move to courts on NICIL

May 21, 2012 News

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By Gary Eleazar

“If the Opposition Politicians believe that NICIL is operating illegally or unconstitutionally then why haven’t they challenged it in the Courts?…Why haven’t they sought a declaration from the Court?…We have a Constitutional Court; it shouldn’t take too long.”
This was the challenge extended to the Parliamentary Opposition by Minister of Legal Affairs and Attorney General, Anil Nandlall, who for the first time has broken his silence on the controversy surrounding the National Industrial and Commercial Investments Limited (NICIL).
Nandlall says that there is absolutely nothing wrong for the Government to invest monies through NICIL at the exclusion of Parliament.
The Minister in an exclusive interview with this publication yesterday, explained that that the only requirement on NICIL to transfer funds to the Consolidated Fund relates to its dividends.
Nandlall says that the opposition rank and file, in reference to the Constitution which speaks to Public monies being turned over to the Consolidated Fund, conveniently leaves out reference to the provisions which allow for monies to not be turned over to the Consolidated Fund.
He says that by virtue of the Companies Act under which NICIL is registered it only has to pay dividends to its shareholders and in this case the Guyana Government is the sole shareholder.
Dividends are paid each year, according to Nandlall
“We must understand what NICIL is; NICIL is a company formed under the PNC administration,” stressed Nandlall.
He says that the purpose of NICIL is no mystery or secret. The “objectives of NICIL are set out in the articles of incorporation…There are a number of objectives that NICIL was established to achieve.”
The Attorney General stressed that NICIL is a Limited Liability “incorporated under the Companies Act” and as such functions just like any other Limited Liability Company “under the Laws of this country.”
He reminded that NICIL operates with a Board of Directors which manages the affairs of the company.
“The Companies Act requires that dividends of every company, is paid to its shareholders…NICIL pays dividend to its shareholder the Government of Guyana and those dividends are deposited in the Consolidated Fund.”
The Minister was adamant that “there is no Law in Guyana that requires a company like NICIL to deposit its funds in the Consolidated Fund….The law requires it to pay its shareholder dividends and that is done.”
Speaking to the argument raised that regardless of the Companies Act, the Government is the ultimate owner and as such monies accrued from the disposal of state assets should also be turned over to the Consolidated Fund, Nandlall says, “NICIL is an investment company; it is a Holding Company…It was established for the government to engage in commercial activities.”
The Government’s legal advisor reminds that each country in the world has a company akin to Guyana’s NICIL.
“The government of a country is entitled, if its feels so, to invest like everyone else for the purpose of making profit.”
Asked specifically about Government investing monies to the exclusion of Parliament, Nandlall says, “Yes, to the exclusion of Parliament…That is not a secret.”
Article 216 of the Constitution of Guyana states:  “All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund.
“This doesn’t capture NICIL,” says Nandlall and further argues that it would be downright wrong for NICIL to turn over all its money to the Consolidate Fund as is being argued by the Opposition.
“It would be wrong…It would be against the letter and spirit of this Constitution.”
He says that the Opposition conveniently omits while quoting the Constitution, the section which dictates and allows for NICIL incorporated under the Companies Act to retain its money for investment purposes.
“The Companies Act tells you where monies emanating from companies like NICIL should go,” argues the Government’s Legal Advisor.
“The company is entitled under law to retain its monies save and except dividends which is paid to the shareholder.”
He reminds that the dividends received by the Government from NICIL are paid into the Consolidated Fund.
“When Mr. Carl Greendige was the Finance Minister, did he pay any money from NICIL into the Consolidated Fund? He should be asked why.”
Responding to A Partnership for National Unity’s (APNU) Carl Greenidge’s retort that NICIL is being operated like a “Slush Fund,” Nandlall says “Greenidge can call it what he wants to call it…It is an investment company established by Greenidge for the purpose of investing public monies.”
He too was also adamant that the company currently under fire, prepares its annual accounts which are audited by the Auditor General “Every year…So you see the transactions…You see what NICIL has done…You see what properties have been sold, where investments have been made.”
The most recent, publicly available financial report for NICIL is 2004.

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