NO LEGAL LIMB TO STAND ON

Jan 19, 2016 Features / Columnists, Peeping Tom

This is an edited version of a column published three and one half years ago in these pages. It is resurrected because there are reports that the police are being asked to investigate alleged breaches of the Constitution by NICIL
Such breaches have to be addressed by the constitutional courts and not by the CID. If NICIL breached the Constitution then those aggrieved have to seek remedies in the Constitutional Court, not in criminal courts.
.This is not a defence of NICIL. It is a counter to the proposition that the revenues and other moneys earned by NICIL should be passed into the Consolidated Fund.
NICIL was created UNDER an Act of Parliament and specifically the Companies Act, and as a body corporate is required to keep certain accounts and funds. This very fact excludes it from having to pass its revenues through the Consolidated Fund.
The critics also find themselves in a quandary when it comes to explaining how it is that the revenues earned by GUYSUCO, also a body corporate, are not paid into the Consolidated Fund. And the reason is that, like NICIL, the revenues of GUYOIL, GNSC and GUYSCO are not controlled by the Consolidated Fund because if this were the case it would make these agencies Budget agencies and not corporations.
It should be recalled that when the former PNC government wanted to extract moneys from the Guyana Sugar Corporation, it did not argue that the revenues from the sale of sugar should pass through the Consolidated Fund. What it did was move a law that allowed it to institute a levy on the corporation.
When interpreting an article of the Constitution, one has to, apart from examining the literal words used, consider the specific intent of the article. Article 216 was intended to create the Consolidated Fund.
When interpreting constitutional provisions, it is also at times necessary to do so in the context of case law since this can clarify useful concepts and relationships, including about the standing of public corporations.
Denning L. J. in Tamlin v Hannaford (1950) had this to state about the public corporation:
‘ In the eye of the law, the ( public) 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.’
NICIL is not required under the constitution to pass its revenues through the Consolidated Fund. It, however, as a 100% government- owned entity, can pay dividends, as it claims it has been doing for the past twenty years, into the said Consolidated Fund. NICIL is not the first and will not be the last holding and parent company for state assets and entities. Before NICIL, there was the Public Corporations Secretariat. And before that, there was GUYSTAC, and also COFA and a host of other parent companies that were responsible for the many public enterprises that existed. As the State divests itself of public assets and invests the proceeds, there will always be a need for a NICIL type body.
Those who wish to see parliament control the funds held by NICIL have no legal case. If they did they would have sought judicial review of the actions of NICIL. They have not and are not likely to risk their considerable reputations on this score.
We have been hearing a great deal about the possible abuse of funds and the lack of audited statements
There have also been criticisms about the level of transparency and disclosure of NICIL. This is all part of the arguments to establish a political/moral case against NICIL.
The issues about disclosure, transparency and the wisdom of investments of NICIL are however separate from the legal arguments about whether NICIL is lawfully required to pass its funds through the Consolidated Fund.
Those who are insisting that the constitution allows for NICIL funds to pass through the Consolidated Fund and this be controlled by parliament, may have a moral case about the need for timelier and greater disclosure by NICIL about its work in the past. But they have no legal limb to stand on when it comes to the right of NICIL to not pass its revenues through the Consolidated Fund.

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