Forestry Commission is an independent body, the case cited by Mr McKay was distinguished by CJ Carl Singh in his decision
Stabroek News
May 10, 2002

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Dear Editor,

I have seen Mr Rex Mc Kay S.C's letter captioned "Cummings could file a constitutional motion claiming redress for discrimination" (4.5.2002). It appears supportive of Dr Luncheon on the narrow issue that the State through the A.G. can intervene in the Cummings matter "if (i) a judge finds discrimination by the GFC and (ii) the judge finds the Commission an instrumentality of the State".

I hope Dr Luncheon does not conclude publicly that Mr Mc Kay is now a conspirator with the Government. Remember how he irrationally asserted that Ramjattan was a conspirator with the Opposition.

However, I wish to warn Dr Luncheon that if he buys into Mr Mc Kay's argument that the Commission is an instrumentality of the State, then all the hard work done by Mr Ralph Ramkarran, S.C. and Mr Doodnauth Singh S.C. in the Guyana Revenue Authority case before C.J. Carl Singh would have gone to zero. So don't be tempted into adopting his position that the Forestry Commission is indeed an instrumentality of the State. That is exactly, I think, what Mr Mc Kay will seek to argue in the upcoming appeal.

The case quoted by Mr McKay S.C. of Richmond v GNNL was referred to in C.J. Carl Singh's decision - see pages 25-27 - but its principle was not applied. Its ratio decidendi is that to determine whether a public body was a government department or not, the control test rather than a function test must be used. C.J. Singh did not apply any of these tests because he said: "No test need be employed where the Statute which brings the public authority into being makes it clear that its existence and identity are separate and apart from the government".

The Chief Justice then ruled that the Guyana Revenue Authority Act makes it very clear that the Revenue Authority indeed is separate from the Government. The Guyana Forestry Commission Act is in almost exact terms, making it a separate, independent entity from Government. That is why Mr Ramjattan is arguing that it is not a government department but something totally different - a creature of Parliament - which cannot be interfered with by the Executive, excepting on such limited matters as Parliament made provisions for in the said Act. So Dr Luncheon you cannot extol the decision of Chief Justice Carl Singh in the Revenue Authority case, and abhor what Mr Ramjattan is telling you in relation to this Forestry case. You cannot approbate and reprobate; you cannot shift the goal post like this. That would be arbitrary governance, not good governance; that would be breaching legality and the rule of law; that would be democratic centralism which has no place in statutory boards or anywhere else in Guyana.

Secondly, what I understand Ramjattan to be saying, when he said: "Not even the President could justifiably override a decision of the Commission through the instrumentality of a hapless Chairman", is that the President cannot use one member of the Board to affect an override, keeping all the other members in the dark. Why have Board members in the first place? As show pieces? If the President wants to intervene and get a Board to change its decision, let the request or recommendation be taken to the entire Board as a collegiate body for it, as a collective, to override its earlier decision, or to stick to it. An instruction should not be executed, in their ignorance, by the Chairman going to the finance section in this stealthy fashion.

All the talk of putting PNC members and civil society members and stakeholders on Boards becomes hogwash if they do not get to know what is being done, and if what is being done is not brought to their attention. Such public bodies might as well remain as government departments, and spare us all this hypocrisy about inclusiveness. This is the important point Mr Ramjattan is making and he is definitely not overbroad as Mr Mc Kay, S.C. feels.

Of course, to get the entire Board to change would require some new facts or a new interpretation of the old facts that Dr Luncheon somehow unearthed. This may have been the difficulty; hence, this stealthy approach. That is why it is so necessary for Dr Luncheon, as Mr Ramjattan had advised, to provide the facts for his findings of racial discrimination, and his reasoning leading to such a conclusion. He should not get away from this obligation by shouting loudly: "I have no fear in saying the Commission was unacceptably insensitive and covertly discriminatory". Otherwise, a senior Government official simply has to loudly shout something negative about a statutory board, and then order the Board's Chairman to do his bidding. I wait to see what would be forthcoming from Dr Luncheon - Reason or Democratic Centralism.

Thirdly, although the Attorney General is the Respondent in proceedings where persons make allegations of human rights breaches against the Government, public officers and statutory corporate entities such as the Guyana Forestry Commission, he is ex officio such a Respondent - in a sense, nominal. Hence, the A.G. or his officers have to take instructions from the Government, public officer or statutory entity being sued and can only consent if such consent is forthcoming from respectively the Government, public officer or statutory entity. In the case of the Forestry Commission, it being a separate entity from the Government, the Attorney General can only consent to redress being granted to Cummings if the Commission so consents. This consent is not dependent on nor can it be superceded by the Government or the President. Otherwise, as Mr Ramjattan has argued, this will leave the Commission without recourse to the Court to vindicate its decision, to present its case, or to defend itself. It will be degutted of its right to accessibility to a Court of law which is a fundamental human right enjoyable by a statutory corporate entity. It will be made an instrumentality of the Government if the Government can control whether it goes to Court or not, whether it should defend its case there or not. And this is exactly what Mr Mc Kay S.C. wants you to admit to - that the Government can control the Commission and therefore the Revenue Authority and therefore it is an instrumentality of Government and therefore the Revenue Authority case was wrongly decided by the Chief Justice.

Dr Luncheon it was your "heaven help us policy" that let things slip away. Had you taken the advice of Mr Ramjattan since last year and told Cummings to go to Court this mess never would have occurred. The Court would have heard all the facts and ruled. If it had found racial discrimination, you would have been vindicated. You would have had the last laugh. Your Minister could have then sacked with justification the entire Board or such discriminatory culprits therein. But all this mess is a consequence of your improper, unlawful intervention.

Now, in your anxiety to prove yourself right, don't do damage to the foundation of the Guyana Revenue Authority case by publicly announcing that you have been vindicated by what Mr Mc Kay S.C advised in his missive on Sunday. Be warned.

Yours faithfully,

Gaumattie Singh