Pradoville improprieties and false fiduciaries

Mar 18, 2017 Letters

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Dear Editor,
I refer to my letter in KN Friday, March 17 on the issue of the price of land in Pradoville 2. I now add my arguments. Subsidy has a universal connotation it is for those who are in financial or economic need; in a position of not being, otherwise, to afford. They all could have afforded a market value whether by loan finance, or equity finance. So, this nonsense about “receiving subsidy” only makes the case of abuse of authority stronger; not weaker.
It is precisely for reasons like what has obtained in these Pradoville improprieties that such unjustly enriched has been referred to by Judges of great eminence, as “false fiduciaries”. Governments have been able to trace and recover the people’s assets that have been unconscionably acquired. The recent Sri Lankan experience is an instructive one.
It is not SOCU’s role as an investigation unit (in the Guyana Police Force) to decide questions of guilt or innocence (that is for a Magistrate, or, Jury in the High Court); or, if there is a real prospect of conviction if charges are instituted (that is the DPP’s role) SOCU is concerned only with the question: is there reasonable grounds to suspect that a crime has been committed. If there is, SOCU attracts no opprobrium if it investigates as to the existence of available evidence in proof of such crime. In this Pradoville 2 matter even the mute would believe that such reasonable grounds to suspect exists. And it must not be lost sight of that such evidence as unearthed is relevant and usable for the purpose of civil recovery, or proceedings for damages by the Attorney General.
Presidential immunity  (article 182)  and  presidential  removability  (article  94 – “President  may  be  removed  for  violations  of  the  Constitution  or  gross misconduct”)  are  separate  and  mutually  exclusive  aspects  of  our  constitutional   jurisprudence; immunity  is  one  thing,  removability  is  quite  another.  So,  where  evidence of  violations  or  gross  misconduct  (e.g  unjust  enrichment)  would  not  be  relevant  or  admissible  in  judicial  process  (civil  or  criminal)  since  immunity  makes  the  President  not  answerable,  or,  unaccountable  for  his  violations  or  gross  misconduct  in  the courts of  law;  he  is  never the  less  accountable  or  answerable  in extra judicial process – the legislative (people’s)  court; – the  court  of  the National Assembly,  be  it  at  the  level of  the  elected  representatives  in  the  National  Assembly;  or the  electors  themselves at Stabroek Market, or Babu John, Port Mourant.
You  cannot  be  removable  (at  any  rate  in  constitutional  theory)  for  “gross  misconduct”  and  yet  be  eligible,  to  right  minded and right thinking peoples,  for  re-election,  in spite of,  or  regardless  of  such gross misconduct.  So,  if  presently  SOCU,s  investigation  exposes  such  gross  misconduct,  the  people’s/electorate’s  right  to know  of  them,  makes  SOCU’s  investigation  not  only  constitutionally  permissible  (by  necessary  implication), but  beneficial.
Mr. Nandlall is myopic about SOCU. He writes: “I was instrumental in the establishment of SOCU. It was created for the exclusive purpose of investigating organized crimes under the Anti-money Laundering Countering the Financing of Terrorism (AMC/CFT) law. Pradovill 2 has nothing to do with this law….”
So, Mr. Nandlall would have your readership believe that the PPP/C’s original conceptualization and intent about SOCU somehow makes it an immutable legal entity incapable at law or in administration of differentiation, or variation (as the case may be) as to its purpose, scope and priorities at the discretion of this APNU+AFC Government of course, there are no such incapacities on this Government. But, that is the arrogance and predilections for inefficiencies of use of the PPP/C. I would remind him that money laundering has its many insidious forms; and that its categories are not closed; nor can they be sensibly considered as exhausted.
Even if Robert Persaud, (Mr. Nandlall’s former Ministerial colleague) is, singularly contrite or remorseful in his disposition to pay a fair market price, at least, (and to his credit) he is doing nothing but unburdening his conscience. To those resisting the human urge to do so, I say Mr. Nandlall (as their Counsel) rather than espouse intransigence should be guided in his advice to them by the law which is this: any position which enables a servant to earn money by its use gave the master (ie the government as employer) a right to receive the money so earned even though it was earned by a criminal act… the government is entitled to that money (Reading V Attorney General (1951) AC, 507 (H.L)).
And the word “trust” in article 142(2) (b)(v) of the Constitution means that there is no refuge in article 142 of the Constitution’s guarantee, against deprivation of property. So, set is the law against unjust enrichment that even the full appreciated value of the property might belong to and be recoverable by the Government.
And so I say to Mr. Nandlall: if there is anything “diabolic” in this matter it is NOT the government’s justified pessimism or cautions reservation about its in-house capabilities (hence the resort to private lawyers; and you can tell the readers what is different from when the late Doodnauth Singh as AG retained you as a then fledging PPP–ite, as a private lawyer to represent him in the important GRA case of Brent Griffith at the CCJ in 2006); rather, it is your “colleagues” wanting to preserve in the error of their unjust enrichment, that is diabolic.
Maxwell E. Edwards
Attorney-at-Law

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