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Possible constitutional loophole in misconduct in public office charges against Ashni Singh, Winston Brassington

Senior Counsel, and Former Speaker of the National Assembly, Ralph Ramkarran

Well-known Senior Counsel, Ralph Ramkarran  on Sunday suggested that Guyana’s constitution exempts government ministers and government-appointed board directors from being classified as public officers.

Ramkarran’s observation is against the background of misconduct in public office charges against Former Finance Minister, Dr. Ashni Singh and former Head of the National Industrial and Commercial Investments Limited (NICIL), Winston Brassington.

Singh and Brassington were earlier this month charged with misconduct in public office in connection with the sale of three large parcels of land for a total of more than GY$900 million, apparently without due regard for valuations.

Writing in his weekly column, Conversation Tree, Ramkarran suggested that there might be a constitutional loophole in favour of the former Finance Minister and the former CEO of NICIL.

“In Guyana, however, the constitution defines a “public officer” as “the holder of a public office.” A “public office” is defined as “an office of emolument in the public service.” And the public service excludes “the Office of the President, [and] Minister.….” and it also excludes “the office of a member of any board, committee or other similar body (whether incorporate or not) established by any law in force in Guyana”, Ramkarran said.

Former Finance Minister, Ashni Singh

Ramkarran said while Guyana’s constitution defines who is a public officer, the United Kingdom does not. “Questions have arisen as to who is a public officer. In England, which does not have a written constitution, or apparently any applicable statutory definition, case law developed”, he said. He referred to the case of R v Whittaker (1914) the court defined a “public office holder” as “an officer who discharges any duty in the discharge of which the public are interested, more clearly if he is paid out of a fund provided by the public.”

He noted that based on the law inherited from Britain at independence in 1966, the maximum penalty if convicted for misconduct in public office is life imprisonment.

He  noted that in the United Kingdom, the Law Commission is examining options for the reform of this offence, which is urgently needed.

The charges against Brassington and Singh were instituted by the Special Organised Crime Unit of the Guyana Police Force. The police witness swore to the evidence before Chief Magistrate, Ann Mc Lennan. However, the charges were not read in court on April 12 because neither of the accused persons was in court.

Then Head of the National Industrial and Commercial Investments Limited (NICIL), Winston Brassington during a media briefing one day before he left Guyana on 21st December, 2015.

The case has been deferred to May 7, 2018 for report, by which time the magistrate would decide her next move.

Meanwhile, private criminal charges brought by two People’s Progressive Party parliamentarians against sitting ministers- Winston Jordan, Volda Lawrence, George Norton and David Patterson- were all discontinued by the Director of Public Prosecutions (DPP).

The DPP. in annoucing the discontinuation of those charges, has said the allegations should have been first reported to the Guyana Police Force. “These charges concern a grave issue under the criminal law in relation to two serving Ministers. In the interest of good governance in the State of Guyana such allegations ought first to have been reported to the Guyana Police Force for an investigation to be launched and the advice of the DPP sought,” the DPP’s Chambers said.