A bill not intended to be understood by the literate
By Eileen Cox
April 28, 2002
Articles on stuff
To whom it may concern: The Movable Property Security Act, prepared by Foley Hoag & Eliot (FHE), Attorney-at-law, consultants to the Government of Guyana for the preparation of new legislation for modernization of the Guyana laws governing interests in movable property could well be so addressed for the technical language used is not intended for the man or woman in the street.
For more than 30 years I have been reading Bills presented to the National Assembly of Guyana and never have I seen any Bill like this. The name “Movable Property Security Act” seems to indicate that it concerns all citizens except the very destitute. All others possess some form of movable property, be it furniture, vehicles, cash, or jewelry. Consumers, therefore, should understand the Bill.
The consultants, Foley Hoag & Eliot, foresee the difficulty that consumers will encounter. They write in an introductory letter.
“As an umbrella statute, embracing many different forms of financing transactions, the draft Act is necessarily complex. However, in order to obtain a sense of the scope and operation of the Act, we enclose below sections of the draft Act that are most applicable to most types of transactions.”
A list of the relevant 28 sections together with Part VIII follows.
Straightaway let me admit that I am unable to understand the intent of this Bill because of the language employed. Before I give an example, let me make two comments.
First. It is a custom in Guyana to present a draft Act as a Bill. When the Bill is passed in the National Assembly and signed by the President it becomes an Act. It seems that in the USA it is customary to present a “draft Act” and not a “Bill”. This was the case when the electricity Sector Reform Act and the Public Utilities Commission 1999 Act were presented to the consumer organizations for consideration. Both were styled “Act” although they were, in fact, Bills.
My second comment is that it is our normal practice to include a short Explanatory Memorandum at the end of the Bill. This allows the consumer to understand the intention of the Bill. It is all written in plain English.
This Movable Property Security Act (MPSA) contains no such Explanatory Memorandum but there is an attachment of 28 pages entitled “Movable Property Security Act Explanatory Memorandum” The explanatory memorandum relates to the 28 sections referred to above.
This Bill is certainly not meant for the ordinary layman. I was told that it is to be interpreted by lawyers and not even by all lawyers.
Seminars are to be held on May 8 and 9. Examples will be provided to show how the MPSA will apply to various types of transactions that are specific to the Guyana business context. Stake-holders are invited to submit written comments to the FHE team via Mr. Leon Rockcliffe of 80 Cowan Street, Kingston, who is also a consultant.
One has to question the drafting of legislation that cannot be understood by the man or woman with some knowledge of the English language. Countless consumers have movable property. There-fore we must all know to what extent we are involved and what are the requirements. One requirement that is discernible is registration.
There is a list in what is called “section” 5(1) showing where the Act does not apply. We learn in 5 (1) (d) that it does not apply to a transaction under the Pawnbrokery Act, but it is difficult to understand language such as this-
“5 (1) (e) [It does not apply] to the creation or assignment of an interest in immovable property, including a mortgage, charge or lease of immovable property, other than an interest in a fixture.”
If this is a sample of the laws that are to be presented in our National Assembly in future, then we had better be prepared for a higher cost of living. We will all need a lawyer on our doorstep.
More legislation means more litigation. Already the court cannot deal swiftly with cases that would seem to be urgent.
The surcharge imposed by GT&T on its customers in 1997 was challenged in the High Court by the Consumers Advisory Bureau (CAB) in the same year. Justice Claudette Singh delivered her decision in November 1999 in favour of CAB. GT&T applied for a stay of execution and then appealed. No decision has yet been handed down.
It will be a field day for lawyers if this piece of legislation comes into force.