Although saying government’s temporary takeover of the Berbice River Bridge is unlawful, the concessionaire Berbice Bridge Company Incorporated (BBCI) yesterday said it will comply with the decision and will consider whether it will mount a legal challenge based on a response from Public Infrastructure Minister David Patterson to a request for a justification of the move.
In a brief statement issued yesterday, BBCI indicated that based on legal advice received, it considers the Order through which government has assumed control of the bridge to be “unlawful and ultra-vires” under Section 11 of the Berbice River Bridge Act on which it is based.
Further, the company said it has written to the minister requesting, pursuant to Section 15 of the Judicial Review Act, that he supply a statement of the facts and reasons on which he based the order.
In the letter, which was also made public yesterday, BBCI Finance Controller and Corporate Secretary Stephan Rambajan invoked the Judicial Review Act and said that “as a body affected by the order” the company wishes to know “the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decisions.”
Rambajan said he looked forward to a response within 14 days.
“Subject to the Minister’s response, the BBCI will consider its options which do not exclude a legal challenge to the Order.
“In the meantime, the BBCI considers that it has no alternative but to comply with the Order issued by the Minister prohibiting the Company from implementing the Toll Order Adjustment announced on 16th October, 2018,” the company added.
The Judicial Review Act stipulates that it is the duty of any person or body making an administrative decision, if requested by any person adversely affected by the decision, to supply that person with a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
Government announced on Monday that Patterson had issued an order declaring that the functions of the BBCI “to maintain and operate the bridge shall be exercised by the Government of Guyana as of November 5th 2018 until the date the Minister specifies by notice on the cessation of the threat to public safety.”
It announcing that government was assuming the responsibility for maintaining and operating the bridge from Monday, the Ministry of Public Infrastruc-ture said the decision was in accordance with powers conferred upon the minister by sections 4 (1) and 11 of the Berbice River Bridge Act.
Section 11 states a function exercisable by the Concessionaire may be exercised by the Government –
(a) in the event of a national emergency declared by the President; or
(b) if the Minister determines that –
(i) its exercise is necessary or expedient in the interests of public safety; or
(ii) the Concessionaire has defaulted in the performance of its obligations under the Concession Agreement (following the expiry of all applicable cure periods in the Concession Agreement and any direct agreement relating thereto with project lenders); save, that the Minister shall not be liable for anything done or omitted by the Concessionaire in the exercise or purported exercise of its authority under this section.
Stabroek News reached out to Patterson for a comment on the BBCI’s statement but the minister indicated that he would not be making a comment on the issue.
Government’s decision was made after the bridge company announced that there would be a huge increase in all tolls from November 12th.
The announcement had been met with opposition by Patterson, who had stated that the government would in no way allow “unconscionable increases” and would be seeking legal advice from the Attorney General’s chambers.
In a statement accompanying the order, the ministry indicated that too many citizens depend on the continuous operations and the use of the bridge, and as a result, “we should not allow anyone to unreasonably and capriciously endanger their livelihood and public order in one of our vital regions.”
Further, it noted that government will “be continuing our dialogue with BBCI in expectation of an amicable resolution to the dispute.”
In announcing the planned increases, Chairman of the Board of Directors of BBCI Dr Surendra Persaud said the decision was based on legal advice that the company had received, while also noting that no prior adjustments were ever made and no surpluses have been earned, resulting in the required hikes in the tolls being compounded.
The move also follows a BBCI proposal of 19-year extension of the contract as an alternative to raising the tolls.
Prior to the takeover, Patterson’s ministry said it was seeking legal advice on the matter and it could also not commit to a meeting with BBCI until the request was discussed with the APNU+AFC Cabinet at a meeting slated for today.
“…BBCI’s revised proposal will be shared at the next cabinet meeting slated for next Wednesday, after which a meeting will be scheduled with BBCI to communicate cabinet’s decision, and hopefully move this process forward. The Ministry wishes to note that this response to BBCI is by no means a refusal to meet; rather, it serves to ensure that the Government of Guyana continues to stand ready to advance the best possible option to all Guyanese in continuing dialogue,” it added.
‘Spurious and inflammatory’
Meanwhile, though it has been noted that the temporary takeover will likely raise concerns in the investment community as it amounts to the compulsory acquisition of private property, Private Sector Commission head Desmond Sears has said that his organisation sees it as a contract dispute at this point. “It is a contract dispute and as such, the parties should be given the space to take actions as they seem fit. We will regroup sometime this week and have another discussion with the executives of the council,” he told Stabroek News in an invited comment.
On Monday, the ministry also sought to refute what it dubbed a “campaign of misinformation to spread propaganda” by a few individuals and the main parliamentary opposition about the temporary takeover.
In particular, it rejected “the spurious and inflammatory claims by the Opposition” that a private property has been expropriated in breach of Article 142 of the Constitution and emphasised that no property had been seized or otherwise taken by the government. “We also reject the opposition attempt at fear mongering and statics by exhuming buried legacies of a different era,” it added.
“The action taken by the Government of Guyana is in keeping with the responsibility to ensure public order and safety, and to guarantee the continuous operations of Berbice Bridge, which is a critical infrastructure asset to a very important region of our country. The social good provided by this bridge ranks similar to other important social services such as healthcare and education. Its value to the economic fortunes of many of our people is also well recognised. No responsible government could sit and wait for the stalemate, arising from the unreasonable unilateral action of one party, to continue which could lead to massive disruption and dislocations in people’s lives,” it said.
The ministry further noted that the government will not be accused of failure to act in the people’s interest or for dereliction of duty in protecting the vital economic region of the country, which is showing signs of economic recovery and growth.
It further noted that the claim by detractors that the government has nationalised the Berbice River Bridge is “appallingly incorrect and mischievous” and reminded the opposition PPP that the action that has been taken is under the provisions of a law passed when it formed the government.
“The Coalition Government has no policy to nationalize or take ownership control of any businesses operating legitimately in the territory of Guyana, and we will aggressively resist and push back against any such labelling of our administration. The Coalition Government would also like to assure the business sector that there is no policy or interest to interfere in or take over private businesses or enterprises,” it said.
“The Berbice River Bridge operates as an essential service, and like all other services in such category, it requires government action in times of national emergency. In the present dispute, we have taken management control of the operations of the Berbice River Bridge in the interest of public safety and this will remain in effect until an agreement can be reached with the other stakeholders in the dispute,” it added.