The need to widen the composition of the Governing Board for the Deeds and Commercial Registries Authority has stalled its establishment, according to Attorney General and Minister of Legal Affairs Basil Williams SC.
Williams told the media last Friday that this widening will be made possible with the amendment of the existing legislation, which will also correct some flaws.
The life of the Board expired last May and since then no attempt has been made to appoint new members.
Asked why this has happened, Williams said it was recognized that the Board needed to be widened to include entities such as the Ministry of Business, the Guyana Revenue Authority and the Valuation Department.
“One of the contentions that was made … [is] that the Deeds and Commercial Registry is an authority. It is a corporate body. It raises its own revenue. It employs its own staff and it pays its own staff too. It has a Board and …the Attorney General is the minister responsible and should give directions to the board,” he said, adding that the widening aspect is now before Parliament after it would have engaged the attention of Cabinet.
He was referring to the Deeds and Commercial Registries Authority (Amendment) Bill which was read for the first time in January this year and is scheduled to be debated at the next sitting of the National Assembly.
Williams noted that the Bill was on the February 9 and March 9 order papers but could not be debated because other Bills had to be addressed.
He said his predecessor Anil Nandlall knows by virtue of being an MP that the Bill is before the House for amendment so as to enlarge the representation of the Board and therefore knows that the Board cannot be constituted until the Bill is debated by second reading and passed.
Nandlall has filed an action in the court calling for the members of the Governing Board to be appointed. Justice Brassington Reynolds later issued a provisional order directing Williams to do so or show cause why the order should not be made absolute.
“Yet Mr Nandlall goes to the court ex parte… For 23 years no judge has every given any order against any minister of the PPP government but since we came into office the judges are giving orders against ministers without giving the ministers a hearing,” Williams said.
He said former Chancellor of Judiciary Justice Carl Singh made a judgement in the Court of Appeal in which he clearly stated that the notion that whenever an applicant goes to court for an Order Nisi, it must be granted, “should no longer hold sway.”
According to Williams, the law clearly states that whenever someone is going ex parte to the court and the matter is not served on the other side so they could be heard before the order is made “you are under a duty to make full and frank disclosure to the court. Failure to do so entitles the court to discharge the order made… and refuse to hear [arguments] on its merits.”
He said that in the case with the Governing Board, Nandlall concealed from the judge, the fact that the matter is engaging the attention of Parliament. “The court cannot interfere in the business of Parliament and it is also interfering with the business of the executive. The court cannot tell the executive how to execute a matter within their domain. Even if the court for example say we must constitute this Board, all the Boards are appointed by Cabinet…. But for the court to sit and tell the executive, how to act when to act and all of that it is overreaching and this happened under the last Chancellor,” he said making reference to the Chancellor appointing the top two persons in the Deed and Commercial Registries, an independent entity, via an erroneous amendment of the Constitution.
The amendment, he said, breached the basic structure of the Constitution which is the separation of powers.
Williams stressed that the authority is part of the executive so the powers given to the Chancellor to appoint is a clear interference.
“Those things will be rolled back. We will restore the rule of law in this country,” he stressed.
Nandlall earlier wrote to Williams expressing his concerns about the matter.
In his letter, he said that that the 2013 Act caters for the establishment of a Governing Board which will ensure the proper and efficient performance of the functions of the Deeds and Com-mercial Registries Authority. The Act also caters for the establishment of such an authority.
According to Section 5(2) of the Act, the Governing Board should consist of a Chairman, appointed by the Minister, the Registrar of Deeds, the Registrar of the Commercial Registry and a nominee each from the Ministry of Finance, Ministry of Housing and Water, the Guyana Bar Association, the Guyana Association of the Legal Professionals and the Private Sector.
Nandlall said the functions of the Governing Board are explicitly laid down in Section 7 of the Act. They include: the hiring, discipline and dismissal of staff; determining their conditions of service and remuneration, including, pensions, gratuity, allowances and the general day-to-day operations of the Authority.
Nandlall said that apart from Section 5(2) (a), which obliges the AG to appoint a Chairman of the Governing Board, Section 6(4) mandates him to appoint the other Members of the Board, excepting, those who are ex-officio. The life of the last Board, he said came to an end in May 2015 but to date, a new Board has not been appointed though he was informed that a new Chairman was appointed in, 2016. “This was obviously done after the life of the last Governing Board would have expired,” Nandlall wrote.
He had also voiced concern over a proposed amendment to the Act that he said would seek to empower the minister to act in the place of a Governing Board when no such Governing Board has been appointed. “Therefore, you have a minister who breaches and violates his statutory obligations to appoint the Governing Board and now will amend the law to say that when there is no such Board he must perform these functions. This is absolutely ridiculous,” Nandlall said.