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AUTHORITARIANISM ON THE RISE: INDEPENDENT INSTITUTIONS UNDER SIEGE

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By: Mohabir Anil Nandlall

Attorney-at-Law

 

Like with every authoritarian regime, there is an increasing proclivity of the Coalition Government, supported by demonstrable evidence, to interfere with and or usurp the functions of independent constitutional agencies, statutory bodies corporate and elected organs. We have witnessed the Minister of Communities unlawfully attempting to select the Mayor of Marbaruma and the Chairpersons of the five tied Neighborhood Democratic Councils. Similarly, Cabinet has arrogated onto itself a power to deliberate upon the controversial parking meters’ contract purportedly executed by the Georgetown Mayor and City Council and has transmitted same to the Attorney-General for a “review.” Unappreciative of how erroneous and legally repugnant the process is, the Attorney-General blissfully completes his “review’’ and rendered his opinion. I have already written about the Overseers, the Regional Executive Officers and the Town Clerks, all agents of the Executive, being systematically used to thwart and frustrate the work of Local Democratic Organs not controlled by the Government.

 

In similar vein, we have learnt that the decision to close Wales Estate did not emanate from Guysuco’s Board nor was it a recommendation of the Commission of Inquiry established to chart a course forward for Guysuco. One must presume that the said decision either came from Cabinet or from the President acting in his own deliberate judgment. We also witnessed the uninitiated attempts by the Attorney-General to torpedo the appointment of the Deputy Registrar of Deeds by the Judicial Service Commission, an independent constitutional body, vested by the Constitution with the power to make that appointment. The matter is now in the High Court. Rather than accept his error and concede that he was wrong, the Attorney-General has chosen to defend the proceedings, thereby exposing himself to greater public embarrassment when the court eventually rules against him. We have also seen the removal from office of the Chief Education Officer, by a letter emanating from the Ministry of the Presidency, when this Officer is an appointee of the Public Service Commission. The premature establishment of a tribunal by the President to investigate the removal of Carvil Duncan from the positions of Chairman and a member of the Public Service Commission, must also be added to this line-up.

 

A similar trend of abuse and quest for power is discernable in respect of appointments to state boards. Section 6 of the Drainage and Irrigation Authority Act 2004, establishes a body corporate to be known as The National Drainage and Irrigation Authority. Section 7 establishes a Board of Directors for this Authority and provides how this Board should be constituted. Section 7(2)(d) provides that two directors are to be nominated by the Rice Producers Association. I am informed by the General Secretary of the Rice Producers Association, Mr. Dharamkumar Seeraj MP, that since the 25th June, 2015, he submitted to the Minister of Agriculture, who is to make the appointments, the two nominees of the Rice Producers Association. To date, those two persons have not been appointed but the Board continues to function. Similarly, Section 3 of the Guyana Rice Development Board Act 1994, establishes the GRDB as a statutory body corporate. Section 3(4) of the GRDB Act, provides for there to be three members representing the Guyana Rice Producers Association. Again, I am informed by Mr. Seeraj MP, that since the 25th June, 2015, he has submitted to the Minister of Agriculture, who has to make the appointments, three names whom the RPA desires to be appointed. To date, those persons have not been appointed.

 

The Deeds and Commercial Registry Authority Act 2013, in like fashion, establishes the Deeds and Commercial Registry as a statutory body corporate to be managed by a Board of Directors. The last Chairman of this Board resigned over two years ago to take up an appointment as Commissioner of Title and Land Court Judge. The Attorney-General and Minister of Legal Affairs is the subject Minister with responsibility to appoint members to this Board. The Chairperson was never replaced by the Attorney General. The life of the Board has come to an end several months ago. So for several months, there is no Board. I am told that when the Board was alive, the Attorney-General masqueraded as the Chairman. I am further informed that in the absence of a Board, he micro-manages the Authority. Hence, the imbroglio which erupted over the appointment of the Deputy Registrar of Deeds. This interference not only constitutes an abuse of power but it is contrary to and in violation of the letter and spirit of the Deeds Registry and Commercial Authority Act and is, therefore, unlawful. In fact, the main reason for the creation of the Authority was to insulate the agency from any Minister and to remove it from Central Government. If the Government’s chief Legal Adviser is acting so egregiously, one can hardly expect his colleagues to act differently. Hence, you have the Prime Minister believing that it is the Government’s responsibility to establish a Secretariat for the Procurement Commission when the Constitution clearly provides otherwise.

 

Perhaps, the most axiomatic exemplification of the lack of appreciation for the independence of these institutions is the belief by no other than the Attorney-General, that he is the lawyer for them all. This is evident by the fact that lawyers attached to the Attorney-General Chambers are now appearing in the High Court for Guysuco, the Mahaica/Mahaicony/Abary Developmental Authority, the Regional Democratic Councils and the Georgetown Public Hospital Corporation, all of which are statutory corporations, which are separate and apart from Central Government.

 

The above examples are certainly not exhaustive but they provide an irrefutable litany of instances of abuse of power and unlawful interferences by Ministers with the functions and operations of independent institutions of the State, consistent with authoritarianism. Unfortunately, one of the chief architects of it all, is the one whose constitutional responsibility it is, to advise against it. The sad reality is that the few professionals within the system who refuses to be consumed by the authoritarian monster and the corruption with which it comes, rather than stay and fight, are resigning. In the face of a power-drunk Chief Executive Officer at GWI against whom allegation of all sorts continue to mount, the Chairman of the Board, whose professionalism I hold in high regard, has resigned. It must be that Chief Executive Officer enjoys the confidence of those high in the authoritarian structure. In the end, authoritarianism continues to rise. Its victims are always democracy and the rule of law.

 

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