Ramson’s opinion as AG was solicited on a private lottery not a government lottery
Unusually for Guyana, Mr Charles Ramson SC uses the honorific ‘Justice’ to subscribe his letter ‘Solicited opinion that the government share of the Lotto funds does not have to be placed in the Consolidated Fund has now been given the blessing of a High Court judge’ (SN, January 15).
Despite having occupied such an exalted position, Mr Ramson still seems unable to accept certain basic facts as well as the relevant constitutional and statutory provisions in the entire Lotto funds issue, including the case to which he refers. Let me try to clarify some salient points for him.
In 1996, some time around which Mr Ramson had his first stint as Attorney General, the Government of Guyana and Canadian Bank Note Ltd signed an agreement under which the company’s wholly-owned subsidiary, the Guyana Lottery Company Inc, was granted permission to operate a lottery in Guyana. Under the terms of the agreement, the company pays to the Government of Guyana a licence fee of 24% of gross revenues, decreased by the amounts of any additional fees and taxes.
The question which the court was asked by Mr Desmond Trotman to address in the Lotto case is whether the 24% is subject to Article 216 of the Constitution of Guyana. That article requires that:
“All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund.”
In what he keeps repeating is a “solicited opinion” given by him on May 19, 2010, Mr Ramson as Attorney General advised that the funds received from the Guyana Lottery Company were not required to be deposited into the Consolidated Fund.
It is more than surprising that Mr Ramson who holds such a high opinion of himself and which he thinks is shared by others would make the elementary mistake of not properly and adequately checking the Government Lotteries Act Cap. 80:07. This Act, which permits and regulates Government lotteries provides the following unambiguous definition of “Government lottery”:
“Government lottery” means a lottery organised and conducted by the Government Lotteries Control Committee under the provisions of section 3 of this Act“ (emphasis added).
But instead of staying faithfully with that definition, Mr Ramson refers in his opinion to the Auditor General the following definition in the agreement:
“A lottery organized and conducted under the provisions of Chapter 80:07 Laws of Guyana.”
No clumsy, procrustean or perverse attempts to circumvent the Guyana Lotteries Act could succeed since only a lottery “organised and conducted by the Government Lotteries Control Committee” comes within the definition of the Act. The lottery on which Mr Ramson’s opinion was solicited is one organised and managed by the Guyana Lottery Company Limited, a private company. It could not therefore be a government lottery, even by Mr Ramson’s strained definition.
But this was not Mr Ramson’s only error. In referring to a Development Fund of Guyana to buttress his flawed opinion, he does the opposite and actually weakens his case. Had he done basic research he would have realised that there is no such fund in Guyana, nor has any been in existence since 1966 when an earlier Development Fund set up for the colony of British Guiana was abolished.
With a modicum of diligence, Mr Ramson would have discovered that there is no Development Fund of Guyana whether under the Constitution, the Financial Administration and Audit Act Cap. 73:04 or the successor provisions in the Fiscal Management and Accountability Act No 20 of 2003. The latter makes it pellucid and mandatory that all public moneys raised or received by the government must be credited fully and promptly to the Consolidated Fund. The only exceptions, none of which applies to the 24% received from a private company, are:
(a) moneys credited to an extra-budgetary fund set up under enabling legislation establishing such a fund;
(b) moneys credited to a deposit fund established by the Minister into which public moneys are paid pending repayment or payment for the purpose for which the moneys were deposited; and (c) any fund established for any specific purpose by or under an Act to be retained by the authority receiving the money to be used for the purpose of defraying the expenses of that authority.
But Mr Ramson’s most egregious error was his failure to recognise that the Constitution is the supreme law of Guyana and its provisions, including Article 216, cannot be swept aside by the terms of any agreement however clearly or ineptly drafted.
Unfortunately for Mr Ramson, he did not stay silent even with the embarrassment of such elementary errors. Without the benefit of a written decision of the judge or his presence in the court when Justice Diane Insanally gave her ruling on a preliminary point, Mr Ramson claims that his opinion “has been given the blessing of a High Court judge.”
If Mr Ramson would exit the fantasy land in which he “sedulously sought refuge” he would realise that the learned judge did no such thing: she simply ruled on a procedural point only; and he would also learn that that ruling has been challenged. Incidentally one of the grounds of appeal is the judge’s reliance on what is considered a flawed point handed down by Mr Ramson himself while he sat on the Court of Appeal.
Unhelpfully for his legacy that was the closing case Mr Ramson included in his book In Pursuit of Justice – A Collectanea which he thinks secured his expertise as a legal mind.