Lawyers representing former Finance Minister Dr Ashni Singh and former Head of the National Industrial and Commercial Investments Limited (NICIL), Winston Brassington, on Friday presented arguments on why the misconduct in public office charges against their clients should be thrown out.
Singh, 45, of Lot 129 Goedverwagting, East Coast Demerara, and Brassington, 50, of Florida, USA, are accused of selling various properties at prices the State contends were grossly undervalued. These charges have to do with the sale of several plots of land on the East Coast of Demerara to the following: National Hardware Guyana Ltd for over $598 million; the sale of land to Scady Business Corporation at a cost of $150 million; and to Multi-Cinemas Guyana Inc. at a cost of $185 million.
The two were granted bail in the sum of $6 million each when they denied the charges filed by the Special Organised Crime Unit (SOCU) at the Magistrates’ Courts following advice obtained from the Director of Public Prosecutions (DDP).
However, lawyers for Singh and Brassington subsequently secured stays of execution, to halt the lower court proceedings while they challenge the misconduct charges in the High Court.
But then another set of charges were filed against Singh and Brassington, this time over the sale of the former Sanata Textiles Complex to Queens Atlantic Investment Inc (QAII).
This, like other charges, was also challenged in the High Court; and back in July, acting Chief Justice Roxane George consolidated the four ‘misconduct in public office’ charges into one substantive challenge.
When the case was called up for hearing on Friday, Attorneys-at-Law Anil Nandlall and Ronald Burch-Smith expounded on their written submissions which were already filed.
Nandlall, in his oral submissions to get the Court to review and quash the charges, said that the DPP, Shalimar Ali-Hack, acted capriciously when she advised that the charges be laid against the former Finance Minister and NICIL.
He contended that the question of whether the Court has the jurisdiction to review the DDP’s decisions ought not to arise, adding that he is of the “impression” that there is an attempt to put the DPP’s execution of her duties in a different category from any other public servant, where her decisions cannot be challenged.
To this end, Nandlall, also a former Attorney General, noting that DPP acted “capriciously” and “arbitrarily”, submitted that there is no jurisprudence to put the DPP in such a “special category”.
Nandlall also focused his line of questioning on the most recent charge against the two former Government officials. That line alleged that between October 26 and December 20, 2010, the duo acted recklessly when they agreed to the sale of the Sanata Textiles Complex to QAII. According to the charge, the 18.976-acre property was sold for $697.8 million, but it was valued at $1.04 billion.
However, according to privatisation documents published by NICIL, the property was valued at $245 million by the Government’s Chief Valuation Officer, but QAII paid $809.5 million for the property – more than three times the Government valuation.
According to documents seen by this publication, upon Cabinet’s approval, QAII embarked on its promised programme of reclamation, clean-up and investment. On May 30, 2007, QAII had requested and received a valuation of the property from the Government Assistant Valuation Officer, which proposed $330.375 million (land $269.200 million; improvements $119.175 million).
On June 7, 2018, NICIL had commissioned a valuation from the private firm of Rodrigues Architects Ltd, which posited that the property be valued at $1,042,403,500 (land $209.650 million; improvements $832.753 million). NICIL also obtained, on June 27, 2007, a valuation of the land and its improvements from the Government’s Chief Valuation Officer, which came in at $245.175 million (land, $130 million; improvements $115.175 million). QAII was responsible, at its expense, for the asbestos clean-up and removal of scrap, which alone incurred a cost of above $400 million.
As such, in court on Friday, Nandlall warned of the opening of floodgates if the court were to accept the valuation done by Rodrigues Architects Ltd, insisting that valuation certificate by that firm is merely the valuator’s opinion.
“[Is it that] not Parliament anymore but the opinion of an architect/valuator becomes engrafted into our Criminal Justice System as part of our Criminal Law, and persons can be charged who act offensive to that opinion, and lose their liberty?” he questioned.
Moreover, Nandlall challenged the validity of the ‘misconduct’ charges. He pointed out that the Government of the day had a policy of selling properties below market value, and Singh and Brassington were merely executing their duties when they carried out the transactions.
“What is this misconduct? There is no allegation that Ashni Singh or Winston Brassington profited personally from these charges… There is no allegation that the proceeds from the sale did not reach the state’s coffers… So there is no wrongdoing, no misconduct to attach sanctions,” he argued, while further questioning which law was offended when the lands were sold below market value.
This point was also raised by his colleague, Attorney Burch-Smith, who pointed out to the court that both Singh and Brassington were agents of the State, carrying out policies, and that these charges are setting aside the corporate veil and entrusting the act of the company onto the agents.
After nearly an hour of oral submissions, the Chief Justice adjourned the matter to October 1 for continuation of arguments.