Anil Nandlall’s arguments are flawed

Sep 03, 2016 Letters

Dear Editor,
I was hesitant to reply to the Honourable Former Minister of Legal Affairs and Attorney General, Mr. Anil Nandlall’s article published in Sunday, August 26th, 2016 Kaieteur Newspaper entitled “SARA Bill is an exercise in futility in terms of past offenders”. But I usually pen these articles out of concern for the healthy thinking of ordinary members of society. I am urging individuals to scrutinize carefully what your politicians tend to mentally feed Guyanese. I hesitated to respond to the article because I am not convince the Former Minister holds an honest belief in what he wrote in that article. If he were to honestly hold such believes that will make a mockery of his teachings as a graduate of the honourable and decent legal profession. Furthermore, I doubt the Former Minister is saying that if there is sufficient and credible evidence to convict an offender of confiscating state assets that the state should have no remedy since there is no legislation covering such a specific act of theft.
Mr. Former Minister, please be mindful of the law of misappropriation of assets, unjust enrichment and unconscionable conduct. The only difference in the application of these principles of law as it relates to SARA’s Bill is that the prosecuting agency is an agency of the state. As legal minds we are more familiar with the application of these principles between litigating private citizens of the State where one citizen relies on these principles to recover the property which justly belongs to him from the defendant.
Generally, the law of unjust enrichment applies where an individual is enriched at the expense of another in circumstances which the law deems unjust. With regards to unconscionable conduct, the conduct is that of the offending Ministers against the State which would have relied on the Ministers’ promise to uphold the moral spirit of the Oath of Office and as a manager of the state’s assets entrusted to him to not unjustly, illegally or unconscionably enrichment him/herself.
In the application of these principles one should note that the Ministers of Government were entrusted with the managing of state’s resources which are the resources of all Guyanese and if the trustee (the Ministers) unjustly use those resources for their personal enrichment. That is an illegal, unconscionable and/or unjust act. Therefore, to put forward such apparent legalistic arguments as retroactivity status is bizarre. The rule against retroactivity and retrospectivity seeks to protect “rights or obligations” of individuals that they enjoyed before the Act of Parliament came into effect. Unjustly enriching oneself with the assets of another entrusted in your care is neither a right nor an obligation enjoyed by individuals.
Therefore, such actions are plainly illegal and in the absence of specific criminal law/legislation capturing such illegal acts of individuals the general body of the common law would seek to prohibit such actions. However, Parliament has taken the pre-emptive step to legislate for such illegal actions so that prosecution of offenders is made easier than it may have been if the common law was the only option for prosecuting offenders. If one were to objectively conclude that these rules have no application to SARA’s Bill, one should note that all laws have a moral underpinning and morality should be the foundation of our conduct. This will make embracing and following the law much easier.
A. Giddings
Amoura Giddings
Chief Executive Director
The Consultancy Firm (TCF)

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