NICIL IS NOT THE GOVERNMENT

Feb 01, 2013 Features / Columnists, Peeping Tom

An attempt should be made, by those concerned, to disabuse the public of the notion that what is taking place at present in the Commission of Inquiry into the events at Linden of July last year, amounts to an assessment of losses and damage suffered as a result of that tragedy .
If there are individuals who believe that it is the responsibility of the Commission to pay compensation to the Linden protesters, then those persons need to be told in no uncertain manner than it is not the remit of the Commission to be compensating anyone or in fact to be specifically assessing claims for compensation.
The Commission established to inquire into the events of July 18, 2012, is not required to offer compensation. The terms of reference of the Commission merely require the body to, where necessary, make recommendations for compensation for injury, losses and damage.
If the Commission recommends that persons who suffered injury, losses or damage be compensated, a separate mechanism would have to be established to deal with this assessment of the losses and the sums to be paid.
At this stage it is premature to assume that compensation will be recommended and it is also premature to assume who will be held legally or morally liable to pay this compensation. It is therefore advisable that it be made clear that the Commission’s mandate is limited to making recommendations about compensation and is not about assessing specific losses or damage or awarding compensation for same.
The Commission may well decide that there should be an administrative mechanism to deal with this issue; or it can opt to recommend that those who have suffered pecuniary losses seek recourse through civil action via the courts.
They may, of their own accord and in their own judgment, decide on whether it is the State that should offer compensation or whether such compensation should be sought by persons outside of the State who may have been vicariously liable for what took place.
There is nothing, of course ,wrong with persons giving evidence as to their losses. This can only help the Commissioners in deciding on the gravity of injuries and losses suffered and just what to recommend in their final report.
There is therefore nothing wrong with persons being asked to give evidence about the pecuniary losses they would have suffered. But just as how individuals can be allowed to give evidence as to their losses, so too should corporate entities which also suffered as a result of the events of July 18, 2012 protest, be allowed to adduce evidence.
Amongst those corporate entities that claimed to have suffered losses is NICIL and it is irrelevant whether this is a public corporation. NICIL has a right, like all the individuals who have so far given evidence establishing that they suffered losses as a result of the protests in Linden, to give evidence.
The issue of the government making a claim against itself should never arise. For one, it is not yet known if the government will entertain claims, and therefore it cannot be said with any certainty that claims would have to be made against the State.
Secondly, and more fundamentally, however, is the fact that even if it is the State that will be required to make compensation, the issue of compensation for NICIL is not a case of the State making a claim against itself.
As a body corporate, NICIL has a legal personality that is separate and distinct from its owners. NICIL as a corporation is different from a public service body since it has the capacity for perpetual existence, its ownership is transferable – and transferable even to the private sector as in the case of privatisation – and it enjoys limited liability. When it acts, it acts in its own name.
Lord Denning in Tamlin V. Hannaford (1950) has this to say: “In the eye of the law the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities and privileges of the Crown. Its servants are not civil servants and its property is not Crown property…(it) is not a government department nor do its powers fall within the province of the government.”
As such it is irrelevant that the government is the sole shareholder of NICIL. That body is its own master, and therefore, like any other individual, is entitled to make a claim for compensation if such a need arises.

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