Dear Editor,
An "editor's note" to Mr. Gomes' letter captioned "Contract can't exclude statute" (l4.2.2002) is not dispositive of whether GT&T's claimed "monopoly" or contract is enforceable. In his letter, Mr. Gomes specified that the GT&T monopoly "is ultra vires and illegal since no one can exclude the law of the land."
The accompanying editor's note to Mr. Gomes' letter quoted Section 33 of the Public Utilities Act of 1999 (PUC Act of 1999). One inference drawn from the quote is that the Public Utilities Commission (PUC) is mandated by Section 33 to give effect to and enforce the GT&T contract. This is the same position articulated by GT&T's lawyers in a Stabroek article, dated February 10, 2002.
The PUC Act of 1999 is but one of several relevant legal issues that must be considered in deciding whether the GT&T contract is enforceable. Other considerations include the presumption that laws are given prospective not retroactive effect, the supremacy of the Guyana Constitution, statute prohibiting monopolies, and whether the Internet is included in the GT&T contract. Before the GT&T contract can be found enforceable, it must clear all of these hurdles, individually and collectively.
Retroactive effect
A long-standing legal principle is that when laws are passed, they have prospective or future effect. Retroactive effect is not presumed and must be explicit in the body of the newly passed law. Whether the PUC Act of 1999 applies retroactively to the GT&T contract of 1990, which was executed nine years earlier should not be presumed.
Supremacy of the constitution
A more important consideration is the supremacy of the Guyana Constitution. Any contract that is contrary to or inconsistent with the Guyana Constitution is void and ultra vires. I suspect this legal principle is what Mr. Gomes was thinking about when he wrote his letter.
The key article of the Guyana Constitution is Article 146. It specifies "No person shall be hindered in the enjoyment of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference, and freedom from interference with his correspondence."
The supremacy of Article 146 is explicit. Section (2)(b) of Article 146 specifies: "Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision ...[hereinafter follows a laundry list, including] "regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television, or ensuring fairness and balance in the dissemination of information to the public."
The translation: an Article 146 contract is enforceable as long as and to the extent that it pertains to "administration" or "technical operation" of telephony. However, a contract is ultra vires if it purports to grant telephony monopoly. It is axiomatic that monopoly not only interferes with but actually deprives the public of its constitutionally protected Article 146 freedoms to receive ideas and information, communicate ideas and information, and freedom in correspondence (faxes and email).
About 100,000 Guyanese want to exercise their constitutionally protected freedom to communicate but cannot because of the GT&T purported grant of a monopoly. The monopoly is per se violation of Article 146. The GT&T contract must pass muster of Article 146,regardless of whether it was approved by Parliament. Incidentally, the evidence seems to suggest that the 1990 Parliament in fact did not ratify the GT&T contract. Regardless, Parliament does not have the lawful power to pass a law that is inconsistent with the Guyana Constitution. There are two basic choices; either the Constitution must be amended (and in that event, the amendment must include retroactive effect) or the contract falls as ultra vires of Article 146.
Law prohibiting monopolies
Of lesser importance but also relevant consideration is a Guyana statute, which has been on the books for decades before the GT&T contract was executed. This little known statute prohibits monopolies and declares them to be generally illegal. The question arises whether the GT&T contract is contrary to this statute.
New technology is outside of the GT&T contract
A more significant consideration is whether the Internet is included in the GT&T contract. Of particular import in the analysis is the glaring omission in the GT&T contract of a rather standard boilerplate clause, inclusion of new technologies. The Internet was not commercially available when the GT&T contract was executed in 1990. More importantly, the Internet uses "packet" technology for data transfer whereas the GT&T license is a grant of the older "switch circuit" technology for telephones.
Omission of the new technologies clause in the GT&T contract means that the Internet and packet technology are outside of the GT&T contract. Even if GT&T can somehow clear the new technology hurdle, GT&T must still overcome the more fundamental issue: whether its purported "monopoly" violates the constitutionally protected fundamental freedom to communicate, and the statute against monopolies. Finally, the sanctity and enforceability of contracts must be distinguished from enforcement of ultra vires contracts. The government must, as the present government repeatedly has made clear, honor its contracts. However, the government has no duty to enforce a contract that was never lawful in the first instance, i.e., one that is inconsistent with the supreme law of the land, the Guyana Constitution. In the final analysis, the interests of the people of Guyana are supreme to those of GT&T.
Understandably, GT&T can claim that it reasonably relied on the fact, albeit mistakenly, that its contract is enforceable. In that case, its remedy lies elsewhere and certainly not in a futile attempt to enforce the unenforceable. Any contemplated relief must necessarily be premised in equity rather than law. Although equity may suggest some accommodations to GT&T for its misguided reliance, equity should not be confused with GT&T's attempts to assert an unenforceable and ultra vires claim in order to prevent the introduction of competition.
Yours faithfully,
Earl Singh,
CEO Caribbean Wireless Telecom