Adequate evidence exists for court action over NICIL
…Liquidating the Holding Company not off the table – Greenidge
By Gary Eleazar
There is enough for a case to be made against Winston Brassington, the Executive Director of the National Industrial and Commercial Investments Limited (NICIL) as well as subject Minister Dr Ashni Singh, says Shadow Finance Minister Carl Greenidge of A Partnership for National Unity (APNU).
Carl Greenidge, also challenges interpretations by Brassington of NICIL’s actions and mandate. He says that there is always the option to completely liquidate the holding company, failing alternatives available to remedy the situation.
Greenidge insists that for NICIL and Brassington to claim that it is a private company and as such cannot receive directives from the Government “is rubbish, completely inaccurate.”
In conceding that there is clearly something amiss, Greenidge says that the Fiscal Management and Accountability Act (FMAA) provides remedies.
He added that one option in light of the significant backlog of audited reports is to have all of the monies in the various entities such as NICIL immediately turned over to the Consolidated Fund
He reminds that the FMAA “actually has penalties…The penalties however will have to be subject to the intervention of the lawyers before they can be applied to the Minister.”
Greenidge says however that in the interim the FMAA has a penalty dealing with loss or misuse of state resources.
Under section 85 of the FMAA it states: An official who – (a) falsifies any account, statement, receipt or other record issued or kept for the purposes of this Act, the Regulations, the Finance Circulars or any other instrument made under this Act; (b) conspires or colludes with any other person to defraud the State or make opportunity for any person to defraud the State; or
(c) knowingly permits any other person to contravene any provision of this Act, is guilty of an indictable offence and liable on conviction to a fine of two million dollars and to imprisonment for three years.
According to Greenidge, Brassington is a public official, and as such falls under the purview of the FMAA and should malfeasance be established, then he can be prosecuted.
Greenidge, while conceding that he is no lawyer says that the law is clear, in that Brassington can be prosecuted as long as malfeasance can be established. “That’s what it clearly says in the Act.”
The Former Finance Minister told this publication that as it relates “Ministers and Politicians who are not officials, we will set about changing the legislation.” He summed up that in the interim, the Constitution coupled with the FMAA provides for a case to be taken to court.
This, Greenidge says, is his understanding from his lawyers, and this is what they will be asked to work on.
Greenidge also told this publication that in the current circumstances the independent auditors, which in this case would be the Audit Office of Guyana, will be expected to make recommendations, after which the Director of Public Prosecutions (DPP) is mandated to act.
“To say that it’s a private company and the government can’t do anything about it is nonsense,” Greenidge stressed. He explained that the government is the sole shareholder of NICIL and as such can instruct the directors to turn the monies over to the Consolidated Fund.
“It is in its power, naturally, as the sole owner, to tell them to dispose of, or liquidate the company.”
He was adamant that this role is not up to the directors of the company as has been intimated by Brassington.
NICIL’s Directors include Finance Minister Dr Ashni Singh, Head of the Presidential Secretariat Dr Roger Luncheon and Company Secretary Marcia Nadir-Sharma.
“They have to take instructions from the representatives of government,” Greenidge said, even as he lamented the political makeup of the board in its current form, “you end up with people that are politicians essentially.”
Greenidge was adamant that it is the Government that has to instruct the transfer of NICIL dividends to the Consolidated Fund, and this cannot be done at the whims and fancies of the directors of NICIL as claimed by Brassington.
GOVT. TRANSFER OF LAND TO NICIL
Greenidge says that the argument now “is whether they have been using the shield of NICIL to dispose of funds in a non-transparent manner and in ways that are unjustifiable.”
In putting the administration to task over NICIL he asked, “If NICIL is a private company over which the government has no control, and only the shareholders, then what is it doing receiving free land from the Government?”
Greenidge suggests that if NICIL is a private company over which the government does not have control then it is illegal to be transferring lands to NICIL “free of cost.”
He said that State land is transferred to NICIL which in turn disposes of it in some cases, to Ministers, “which as far as I am concerned is illegal, especially to (Bharrat) Jagdeo.”
He argues that the Former President should not be entitled to State lands, saying that as President he was the guardian of State Lands.
Speaking to what NICIL is supposed to be doing with its money, the former Finance Minister says that the Constitution of Guyana supersedes any law and the Constitution demands that the monies be turned over to the Consolidated Fund.
Greenidge concedes that it is ultimately for the Government to decide where the money is invested, but argues that it is also for “the Legislature to know and to give its view on the matter.”
“It is for the government to decide on how state assets are used but it does not exercise that power in a vacuum.”
Greenidge reminded that the money in question are very substantial amounts and “whilst the government is taxing people and telling them that they cannot reduce taxes, the government has taken revenues from the sale of land and property, has it essentially in a slush fund, and they just facilitate friends, cronies and businesses associated with government and other things.”
“What Government must now do is establish that the monies are being disposed of in a way that is defensible. The idea of putting it in the Consolidated Fund is in the Constitution. The default position as it relates to government monies is to put it into the Consolidated Fund.”
He said that if for any operational reason it would be more prudent to have the monies managed outside of the Consolidated Fund then “if operational costs warrant it, then you can make such an arrangement.”
Greenidge was adamant that it is not a default position that large sums of government money automatically finds its way into NCICL accounts, “and you decide what you want to do with it afterwards.”
The APNU parliamentarian says that as it relates to his party, “all options are open. The situation will be rectified if necessary by amending the relevant legislation…The parliament has the competence to amend the legislation under which NICIL falls.”
He said that NICIL was not created by the Constitution and as such amending the legislation will not require a 2/3 majority vote, a simple majority will suffice.
“If necessary it can even be liquidated…all options are on the table, let us see how the government behaves, the initial reaction I must say is completely unacceptable”