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Volume I I: The Legal Framework of Commonwealth Caribbean Public Enterprise @ Institute of Development Studies, Georgetown, Guyana, and Institute of Social and Economic Research, Mona, Jamaica, 1983

University of Guyana, Georgetown GY. Institute of Development Studies University of the West Indies, Mona JM. Institute of Social and Economic Research

Studies in Caribbean public enterprise. Volume 11: The legal framework of Commonwealth Caribbean public enterprise. 1983. 67 p.

/Public enterprises/,/state intervention/,/nationalization/,/public ownership/,/lega! aspects/,/Commonwealth/,/Caribbean/-/Barbados/, /Jamaica/,/Guyana/, /Trinidad and Tobago/, /West Indian Associated States/, /economic policy/,/evaluation/,/financial statistics/,/statistical tables/ ,references.

UDC: 658.115(729) STUDIES IN CARIBBEAN PUBLIC ENTERPRISE

VOLUME n: THE LEGAL FRAMEWORK OF COMMONWEALTH CARIBBEAN PUBLIC ENTERPRISE CONTENTS

Foreword

Contributors

Introduction

Some Issues in the Law of Public Enterprises in the Commonwealth Caribbean A.R. Cmegie

Introduction The significance of legal forms The powers of public enterprises Controls over public enterprises References

Review of the Law and Practice of Public Corporations in Guyana A.A. Alexander

Introduction The philosophy of the public corporation in Guyana The Public Corporations Ordinance The Public Corporations (Amendment) Act 1971 The Public Corporations (Amendment) Bill 1976 The use and effect of commissions of enquiry Some considerations on public corporations References FOREWORD

The Research Studies in Caribbean Public Enterprise were produced under the aegis of the Institute of Social and Economic Research (I.S.E.R.), University of the West Indies, and the Institute of Develop- ment Studies (I.D.S.), University of Guyana. The Project Studies in Caribbean Public Enterprise, was financed by the International Develop- ment Research Centre (IDRC) of Canada. Research was carried out between 1976 and 1979, under the direction of Adlith Brown, Senior

Research Fellow---- ~ of- the. - I.S.E.R.-~ .-. ~ In Volume I, An Overview of Public Enterprise in the Commonwealth Caribbean, descriptive studies on the extent of public sector activity in each of the territories of the Commonwealth Caribbean are presented. Volume 11, The Leqal Framework of Commonwealth Caribbean Public Enterprise, consists of analyses of the legal framework governing public enterprise activity in the region. The Project, Studies in Caribbean Public Enterprise, has also qenerated essays that examine specific issues of public enterprise in each of the territories covered. These have been. published in Public Sector Issues in the Commonwealth Caribbean, a Special Issue of Social and Economic Studies, Vol. 30, No. 1, March 1981. We take this opportunity of expressing our thanks to the many individuals and organisations within the ~aribbean and without, whb were of assistance at various stages of the project. We wish also to thank Dr. Rafique Rahman, formerly of the IDRC, for his continued assistance.

J.E. Greene C.Y. Thomas Acting Director, I.S.E.R. Acting Director, I.D.S. CONTRIBUTORS

A.A. Alexander, Department of Political Science and Law, University of Guyana, Georgetown, Guyana

A.R. Camegie, Faculty of Law, University of the West Indies, Cave Hill, Barbados INTRODUCTION

The legal framework governing the creation and control of public enterprises is usually considered as a determining influence on their operation and function. The studies by Carnegie and by Alexander, which comprise Volume I1 of Studies in Caribbean Public Enterprise, pursue this theme. These studies show that there is a discernible pattern in the legal structures relevant to the administrative organisation, powers and mechanisms of control of public enterprises, which is common to the Commonwealth Caribbean countries. Yet, there are differences which have important implications for analyses of the functioning of these agencies in each country. As Carnegie points out, the common legal heritage provided by English Common Law, even after extensive statu- tory reconstruction, results in a substratum of general basic principles, although the detail shows substantial variation. Both studies suggest that to understand these variations, it is necessary to view the legal framework as a subset of the mechanisms through which public enterprises, as agencies of the state, perform specific functions. This is most clearly demonstrated in the case of Guyana, which is referred to by Carnegie and explored in detail by Alexander. In Guyana one Public Corporations Act enables any public corporation to be established or liquidated, and a specific public cor- poration may be set up by an order of the minister responsible for public corporations. Alexander observes that this indicates a common philosophy underlying all public corporations. Against this background he explores how the law and its practice might be geared to the stated goals of the state. In this approach, the legal apparatus of the state can be analysed, not only as a means of exercising constraint, but also as a mechanism available to the state in the exercise of particular powers. The evi- dence supporting this view of the legal framework is not limited to Guyana. Carnegie cites the memoranda of association of National Hotel and Properties Ltd. (Jamaica) and Barbados Dairy Industries Ltd. (Barbados) in discussing the variations in powers which may by law be accorded to corporations. However, the legal powers of public enterprises individually, or as a set, reflect the authority and the ability of the state, as well as the specific processes chosen by the state to effect its goals. In these processes the legal framework is not an independent or autonomously determined variable, but a variable whose use is determined by the par- ticular configuration and internal dynamics of the state and political system in which it must be effective. It is not surprising therefore, that in spite of the underlying similarities in Caribbean legal struc- tures, the law governing the structure of public enterprises, whatever the jurisdiction, is technically capable of being employed to pursue ideological objectives as divergent as those currently expressed across the Caribbean. Adlith Rrown I.S.E.R. U.W.I., Mona. SOME ISSUES IN MELAW OF PLJEILIC ENTERPRISES IN THE COMMONWEALTH CARIBBEAN

A.R. Carnegie

Introduction

This chapter provides an introduction to and discussion of some key issues in the law relating to public enterprises in the major Common- wealth Caribbean jurisdictions of Barbados, Jamaica and Trinidad- Tobago, with some comparative reference to Guyana. It concentrates on issues of legal doctrine rather than the political and economic context of public enterprises. Isolating legal issues may be valuable in the present stage of development of Commonwealth Caribbean legal literature, which is still sparse in relation to the scope of its subject matter. Identification of legal doctrinal issues is also necessary for any policy oriented discus- sion of the political, economic, and social aspects of public enterprise, as legal doctrine conditions the translation of public enterprise policy into action. The issues are discussed under three main headings: the sig- nificance of legal forms; the powers of public enterprises; and minis- terial, parliamentary and public controls over public enterprises (1).

The Significance of Legal Forms

Friedmann classifies public enterprises as departmental government enterprises, public corporations proper, and commercial companies. This classification provides a convenient framework for discussinq the legal forms of public enterprises in the West Indies (2). Examples of West Indian enterprises in the departmental category are the post offices in most jurisdictions (3) and the Grantley Adams International Airport in Barbados. The Jamaican Airports Authority which runs the Normar Manley and Donald Sangster International Air- ports in Jamaica (4), the Jamaica Railway Corporation (5) and the Bar- bados Transport Board (6) are in the public corporations category, and Caroni Sugar Estates Ltd., British West Indian Airways in Trinidad- Tobago, and Caribbean Airways Ltd. and Barbados Dairy Industries Ltd. in Barbados are in the category of commercial companies. Despite extensive statutory reconstruction, the common legal heritage of the Commonwealth Caribbean provided by English common law results in a substratum of general basic legal principles, although the detail shows substantial variation. For example, the legal signifi- cance of the departmental form of organisation is similar in the different states. It is based on the same common law principles but is modified by constitutional provisions and statutes which may, but do not always, show more variation. The Companies Acts of Jamaica and Trinidad- Tobago for example, have considerable differences, but basically they represent different historical stages of the development of English com- pany law, and they therefore have few conceptual differences. With the exception of Guyana (7) public corporations in the Commonwealth Caribbean have mostly been created by ad hoc statutes, and despite variation in the statutes the common legal tradition of those drafting the legislation can be detected. The relative clarity of differences of form in the law governing public enterprises is not necessarily matched by equally unambiguous differences of legal consequence. For example, whether a public enter- prise enjoys a legal privilege of the Crown is not predetermined by the organisetional form of the enterprise. It is legally possible for a separate legal entity to have the privileges of the Crown (a), and for a governmental activity not separately incorporated to be denied such privileges (9). The basic differences of form among departmental public enter- prises, public corporations, and commercial companies relate to the legal concept of personality. In law public enterprises act as persons dis- tinct from the people who run them. The extent to which the distinct personality attributed to a group by a legal system is pure artificial abstraction or recognition of a metaphysical reality is a matter of juristic controversy (lo), but the extremes of recognition of personality or the refusal of that recognition are artificial in English law and therefore also in West Indian law. Thus a legal person may be little more than an additional legal personality attributed to an individual by the law, as in the case of a corporation sole (11) or a one-man company (12), while unusually strong social groups can be denied that attribu- tion, as in the case of a typical trade union or members' club (13). In the nonrepublican West Indian jurisdictions, the normal functions of government are those of the Crown (14) as a corporation. Tradi- tionally, the Crown has been considered to be a corporation sole with the sovereign the only member (15). This theory, however, has recently been disputed. In 1977 one Law Lord regarded the Crown as a corporation aggregate consisting of political decision makers (161, and another described the Crown as the government (17). If this is a new trend, the conceptual adjustments to the Guyana and Trinidad-Tobago form of republicanism may be minimised. In those states, the personal- ity of public enterprises is by law the state, represented by, but (presumably) not comprising solely, the President (18). Whether the legal personality of departmental public enterprises is the Crown or government in the monarchies, or the state in the republics, will even- tually be determined from the legal controversy. Public corporations, however, have personalities distinct from those of the Crown, government or state. That personality is conferred ad hoc by a constituent statute, except in Guyana where a statute allows ministries to generate public corporations according to a formula (19). In the other jurisdictions generation of public corporations comes under companies legislation. The personality form under which the commercial company public enterprises operate is that originally designed for the private sector. It is an historical statutory creation of the companies legislation enabling mechanism and is the dominant form in privately owned com- merce and industry (20). Friedmenn's classification of public enterprises is oversimplified in that it does not allow for chartered corporations which are legal vehicles used by both private and public enterprise (211, and the occasional practice of separately incorporating government departments without giving them organisational independence blurs the distinction between departmental public enterprises sharing the personality of the Crown or state and separately incorporated public enterprises (22). This can result in the creation of legal persons who also share the peculiar legal incidents of the legal personality of the Crown or state. In addition it is difficult to identify the special characteristics of public corporations when comparing public corporations with corpora- tions incorporated by private acts of Parliament for nongovernmental purposes (23). The practical legal effect of these differences of form is, in some measure, speculative as precedents tend to identify areas where the differences of form of personality do not determine the matter, and do not lay down the consequences of the differences (24). Departmental public enterprises are constrained by the principles of public law provided by constitutions, statute law and common law. The constitution law is most important because West Indian governments by virtue of their parliamentary majorities are normally in a position to control the content of statute law and common law. Constitutional restrictions may have consequences that a govern- ment might wish to avoid. For example a service commission, rather than a minister, substantially controls appointments and staffing in a government department (25). Although service commissioners are normally nominated by the prime minister (26) they do not always act according to the prime minister's wishes. Were it otherwise, why did the Prime Minister of Jamaica replace the Public Service Commission after the 1976 election, and why was the Barbadian constitution amended in 1974 to remove judicial appointments from service commission control and to increase the number of positions that required prime ministerial consultation before making appointments (27)? It appears to be assumed that bodies controlled by government but created by statute are not legally subject to service commission con- trol. The establishment of the Statutory Authorities Service Commission in Trinidad-Tobago would otherwise have been deemed unconstitutional (28) because the constitution in force on the date it was established excepted members of boards from the category of public officers (29) without making special provision for public corporations. In Barbados, and possibly also in Trinidad-Tobago, constitutional amendments have now made solution of this problem possible. In 1974, in Barbados, posts that were not established by the Civil Establishment Act, 1949, were excluded from the public service as defined in the Barbados con- stitution and consequently excluded also from the jurisdiction of the Public Service Commission. The 1976 republican constitution of Trinidad-Tobago permits legislatively created special offices to be excepted from the category of public officers (30). It is not easy to find legal authority to support the assumption that the constitutional machinery for depoliticising the public service can be as easily circumvented as has thus been apparently assumed. The con- stitutions provide that the service commissions' jurisdiction relates to public officers in the service of the Crown (31). The legal meaning of public office, however, can be very broad indeed. In Henly v. Lyme Corporation, bishops and clergymen of the established church were described as public officers (32), while the term public office has been held to include even a director of a private company in McMillan v. Guest (33). In Beeston & Stapleford U.D.C. v. Smith (34), the court adopted a meaning for public officer which appears to be closer to that intended by those drafting the West Indian constitutions, and Lord Goddard C.J. said that different meanings can be given to the words 'public officer' according to the statute in which they occur (35). The meaning of public officer in the constitution of Guyana was recently discussed by members of the Guyana Court of Appeal in the so far un- reported case of Yaws v. Correia (36). The court was clearly attracted by the test that a public office was one that had been established in estimates approved by parliament. The court however had to consider whether certain casual employees in a civil service department should be included in the category of public officers, and not whether persons holding appointments outside civil service departments were correctly classed as public officers. If the test favoured by the Guyana Court of Appeal is indeed the true test of ascertaining what a public officer is, then the staff of public corporations are excluded from public service commission juris- diction as they are under the Barbados constitutional provision. It does, however, seem strange that legislative approval should be regarded as the key to the definition of public office under the Guyana constitution when that constitution confers on the President of Guyana the power of establishing offices (37). The Yaws v. Correia judge- ments do not refer to that provision. However, it is unrealistic to expect judges in the region not to be influenced by the potentially embarrassing practical implications of deciding that public corporations or even government-owned companies are subject to public service com- mission jurisdiction, and it is possible that judges may try to avoid such a decision. Even if the Yaws v. Correia test were not followed, another test case would probably have the same result because of the potential flexibility in interpreting the meaning of public office recognised in the Beeston & Stapleford U.D.C. case (38). Legal problems under the constitution are not only those of reconciling policies of a minister and a service commission. Judqes in the region are tending to subject the activities of the service commis- sions to judicial control which does not appear to have been the inten- tion of the constitutions. The constitutions of the larger jurisdictions all have a provision to the effect that whether a service commission or anyone acting thereunder has validly discharged any function shall not be enquired into in any court (39), but courts in Guyana (40), Jamaica (41), and Trinidad-Tobago (42) have nevertheless entertained claims in litigation challenging decisions in matters falling within the apparent purview of these provisions. This problem will not be ameliorated by the creation of statutory corporations or commercial companies, because issues of the nonjustifia- bility of termination of employment can only arise in the public service, either by virtue of the common law rule that a public servant's employ- ment is held at the pleasure of the Crown (43), or by virtue of a clause in the constitution precluding judicial review of the activities of a service commission (44). A private contract of employment may only be rightfully terminated in accordance with its terms on notice or for cause, and therefore it is not advantageous for the government to oper- ate with staff employed on private law terms. In public law there is also a category of employment governed by procedural requirements in which dismissal can be challenged for breach of the rules of natural justice (45) or for some other ultra vires ground such as the rule against subdelegation, delegatus non potest delegare (46). A private contract of employment used to be free from these dif- ficulties at common law. When an employee was dismissed, there was normally no question of his reinstatement, but only of paying damages, whereas breach of the procedural requirements in public law can result in reinstatement (47). At common law therefore, an employer, though running the risk of paying damages for wrongful dismissal was rid of the dismissed employee, whereas the employer of the holder of an office protected by public law was not certain of being rid of a dismissed employee. This advantage of the private employer has been giving way gradually to the trend towards statutory regulation of industrial rela- tions which provides for reinstatement for unfair dismissal (48). In the absence of what would be special and atypical statutory provisions, the legal rules regarding dismissal of employees of public corporations are not the same as those relating to dismissal of public officers. The dismissal of employees of public corporations is sometimes governed by the procedural requirements of removal from an office, and at others by the law relating to private contracts of employment. For example, where the statute establishing a public corporation makes special provision for a particular office or for particular offices within that corporation, it can be inferred that the holder of that office cannot be removed except by complying with the rules of natural justice. Where, however, the employee of the corporation is employed under a provision in the constitutive statute conferring power generally to employ staff there is authority which suggests that the contract remains essentially a private contract of employment with dismissibility for cause or by notice at common law (49). These considerations relating to the appointment and dismissal of persons employed in public enterprises indicate that the choice of the legal form to be taken by the public enterprise has important implica- tions for the personnel policy of the enterprise because of constraints that may be imposed by the constitution. The implications of the legal form of the enterprise can vary from jurisdiction to jurisdiction, and can be confused by the uncertain and unsettled character of some of the crucial legal rules. Rut it may be important to avoid the depart- mental form of public enterprise if preservation of ministerial control of appointments, unhindered by the activities of the public service commis- sion, is desired. Ministerial control can certainly be achieved hy the public corporation form in Barbados and probably elsewhere. In Barbados, but not in Trinidad-Tobago, staff of a public enterprise can be dismissed at the cost of paying damages, by using the commercial company form, because in Barbados the common law still prevails in areas that in Trinidad-Tobago are governed by the Industrial Relations Act (50). If unfettered dismissal by a public service commission can he achieved it may be easier to do so in Guyana than in St. I-ucia because the Guyana constitution, unlike the St. Lucia constitution, contains a clause purporting to oust judicial control of the activities of its public service commission (51). From a legal point of view the form of a public enterprise might also make a difference in areas other than staffing. One consequence of the departmental form is that the activities of the enterprise are restricted by the provisions of the constitutions protecting fundamental rights and freedoms. Because it has been held that these provisions protect against infringements by organs of the state, but not against infringement by private persons (52), it may follow that a departmental enterprise is subject to constraints on its actions which a statutory corporation or a commercial company would not have. This view on constraints that apply to a departmental enterprise has been applied in relation to a government owned commercial company in the Trinidadian case of Re Arjoon, decided by Cross J. (53). In that case, the judge held that the constitutional remedy for infringe- ment of the freedom of property guaranteed by the constitution of Trinidad-Tobago was not available against Caroni Ltd., notwithstanding its majority ownership by the government, for making deductions from payments due to the applicant to pay the sums over to the government, even although the levy by the government, in pursuance of which the payments were made, was unconstitutional (54). Where the choice of form of public enterprise is between a public corporation and a commercial company, there appears to be no legal advantage to the company form over the public corporation if suitable legislation is drafted for the latter. If legislation for the company form is adequate the legal convenience of not having to draft a new statute can influence the choice of public enterprise form. Because of the ease with which public corporations can be established under the Public Corporations Act in Guyana there is not this advantage there to the company form of enterprise (55). A popular reason for choosing the commercial company form is that it is a convenient way of dealing with joint enterprises between govern- ment and private individuals or companies. If a government acquires or sets up a company in this way, machinery provided by company law already exists for the transfer of nongovernment owned shares, or as happened when the Trinidad government sold the airline LIAT to private commercial interests, the transfer of government owned shares. Again, this form is chosen for convenience - any result that can be achieved under the general companies legislation could theoretically be achieved under a suitably drafted ad hoc statute. The Workers' Bank in Jamaica is an example of a statutorily created public corporation under which shares are owned by bodies other than government (56). There are, however, inconveniences to the company law form of operation. If a government is the sole owner of an enterprise, much of the structure of the company law, such as the provisions for protection of minority interests, will be irrelevant. The elaborate provisions for dealing with insolvent companies will also be irrelevant to a government enterprise, because political exped- iency will normally dictate that insolvency shou1.d be publicly presented in rather different language. The special provisions of company law dealing with accounting may also have more nuisance value than conven- ience for a government enterprise. Legal considerations may possibly therefore be unlikely to play a predominant part in a decision on the form of a public enterprise, with the possible exception of the area of personnel policy. A 1977 speech by the Chairman of the Industrial Development Corporation in Barbados gave as examples of the advantages of the public corporation over the civil service department, potentially greater speed and flexibility of decision and greater bargaining capacity to attract well trained and dynamic personnel by offering higher salaries than those of the civil service (57). Although the statutory corporation may have these advan- tages there is nothing significantly legal about them. Any legal restriction on recruiting nonnationals to civil service posts, or on the salaries paid to civil service employees can be removed by ordinary legislation well within the power of the government's parliamentary majority. If, however, salaries in a particular civil service department are too high, the government invites either industrial disputes or fiscal difficulties through straining its budget to pay comparable increases to all civil servants across the board. There is, therefore, no necessary correlation between variations in the legal forms of public enterprises and variations in their scope, structure and operations. Even if such correlation is required by a con- stitution, every constitution in the region contains machinery for its alteration, which makes certain results more difficult, rather than impossible, to achieve. Where there are no constraints imposed by a constitution, any desired legal result lies within the power of the smallest parliamentary majority. Any pattern that can be discerned between a legal form of public enterprise and its scope, structure and operations could be due to leqal tradition, or other, only tangentially legal considerations.

The Powem of Public Enterprises

Introduction

Distinguishing the concept of legal power from legal right or legal privilege (58) and the language of statutes relating to specific public enterprises pose theoretical problems in discussing the powers of a pub- lic enterprise (59). The powers of the enterprise as a whole must also be distinguished from the powers of the component parts in relation to each other, al- though similar language may sometimes be used in relation to the powers of both (60). The context in which the power is used and the possible conse- quences of that power must also be taken into consideration. Some people would like to see companies granted all the powers of an indivi- dual and thereby be freed from the restrictive regime of the ultra vires doctrine, because if it is concluded that a company does not enjoy a particular power, loss is inflicted on others contracting with it in innocence, and the harm done outweighs protecting the interest of shareholders through safeguarding against uncontemplated use of their invested funds. When recommending abolition of the ultra vires doc- trine in 1945 the Cohen Report did not mention other interests (611, but if the doctrine became useful to outsiders to restrict competition different considerations would become relevant (62). A distinction must also be made between powers independent of rights and powers attended with rights. For example, whether a cor- poration has power to commit a tort might relate to whether a corpora- tion can be liable in an action in tort (631, or whether the corporation is authorised to act lawfully in a manner which, in the absence of such authorisation, would have entailed the commission of a tort (64). A comprehensive treatment taking all the factors outlined above will not be given here (65). Instead the powers of public enterprises will be discussed in relation to Friedmann's three categories (66) in the context of the purposes that the enterprise may lawfully pursue, the legal machinery that the enterprise may lawfully employ for these pur- poses, and the coercive powers at the disposal of the enterprise. Dis- cussion will be confined to the powers of enterprises in relation to other persons (i.e. the powers of the organism), and constitutional problems concerning, for example, the conditions for or manner of the exercise of a power will be omitted. The discussion is limited, more- over, to powers attended with rights.

Departmental Public Enterprises

Because a departmental enterprise functions as part of the Crown (in the monarchies) (67) or state (in the republics) (68), the basic law governing its powers is the law governing the powers of the Crown or state. At common law, the lack of a separate legal personality of the enterprise means that the powers of the enterprise are the powers of the Crown. At common law the powers of the Crown were known as the royal prerogative. Instead of this term the constitutions refer to the execu- tive power of the state (69). Despite the different terminoloqy the power appears to be the same as that of the Crown at common law (70). Most of the common law powers of the Crown relevant to a study of public enterprises probably have been superseded by statutory powers. The royal prerogative is subordinate to the legislative power of parliament at common law (71), and the constitutions all confirm this position in relation to executive power (72). Indeed, the royal preroq- ative is so subordinate to parliamentary power at common law that where parliament confers power by statute, that power is not necessarily cumu- lated with the prerogative power, but may suspend the operation of that prerogative power, even by silence (73). Where statutory powers have been conferred on a departmental public enterprise, they can be conferred either on a minister (74), or on the holder of a particular office in the public service (751, as well as on the enterprise as an institutional entity. The powers of a particular departmental enterprise can therefore be the powers of the Crown, the minister, or the departmental head in relation to the activities of the enterprise. The objectives that may lawfully be pursued by a departmental public enterprise are no doubt conditioned by its powers. At common law, however, the lawful objectives that could be pursued by the Crown would not have been limited in the way that the ultra vires doctrine limits statutory public corporations and companies. Any such restric- tion on the Crown would have merited notoriety in constitutional law, and that the point is seldom referred to in texts implies that no such restriction exists. As a corporation sole at common law, the Crown must presumably share the capacity of a common law corporation to act as a natural person, a capacity unfettered, in the case of the Crown, by the threat of forfeiture of its charter for unconstitutional action (76). Again, the Crown should enjoy the capacity to pursue any objective which it could incorporate another body to pursue, so that the objectives that the Crown may in law pursue must be at least the sum of all possible lawful objectives of a chartered corporation. The implication that the Crown's powers are not qualified by the necessity to avoid the pursuit of objectives not positively authorised by law may be illustrated by a hypothetical example. If the post office in a Commonwealth Caribbean state wished to establish a stamp dealing business overseas dealing not only in its own stamps but also offering a full range of services for philatelists, the absence of a specific power to establish such a business in a post office act could not rule out the competence of the Crown by virtue of the prerogative power to enqage the postal service's personnel in the exercise (77). The power to establish such a business could only be impugned by reference to some statutory restriction on the prerogative, whereas a statutory public corporation or a company would be subject to the opposite presumption that no such power existed unless it had been positively conferred by statute (78). The power of a departmental public enterprise seems therefore unaffected by restrictions on its use of lawful means at common law for its desired purposes. The context in which those means are used is, however, important. Once a public corporation or a company is pursu- ing a permitted object, the law attributes to it a range of incidental powers that do not need positive statutory authorisation (791, and the departmental enterprise does not therefore necessarily have an advanta- geous position. Again, the empowering statutes of departmental public enterprises impose implied restrictions on their methods of operation rather than on their choice of objectives. Thus, for example, the elab- orate provisions of the Jamaican Post Office Act governing the circum- stances in which gratuities can be paid to operators of vessels carrying mails under ad hoc requisition by the post office (80) might well be construed by a court as, by implication, suspending the right which the Crown would presumably have enjoyed at common law of freedom of negotiation in the same circumstances. Furthermore, the common law relating to the royal preroqative does not give the contemporary state the legal coercive powers it needs through the powers of departmental public enterprises. Except in cer- tain circumscribed areas the Crown does not have the power to make binding legislation (81) with the result that a departmental public enterprise that needs the power to make rules binding usually has to look to legislation for this power. Legislation is also required to authorise interference with property rights such as compulsory pur- chase, or powers of entry on private property for inspection purposes, subject to exceptions relating to defence and wartime powers (R2). This type of disability that applies to a departmental enterprise also applies a fortiori to a public corporation or a commercial company public enterprise. Therefore examples of legislation conferring coercive powers can be found in relation to all three categories of public enter- prise (83).

Public Corporations

The general principle governing the powers of statutory public corporations is that they enjoy such powers as are conferred by the statute creating them (84). This does not mean that the literal and grammatical reading of the language of the statute will answer all ques- tions on the actual powers of public corporations. In any statute powers may be more extensive than they at first appear because of the implication of incidental powers (85). Likewise a power which appears in a statute in unqualified terms may have to be restricted in its legal effect by applying presumptions of interpretation, such as that unquali- fied discretions must be exercised for relevant purposes only (86), and that imposing procedural requirements of natural justice (87). The principle that public corporations enjoy only those powers conferred by their statutes qreatly restricts the purposes that the pub- lic corporation may lawfully pursue. In the United Kingdom for example, it was ruled that the establishment of a laundry by a local authority was ultra vires where the provision of a wash-house for the washing of clothes would have been intra vires (BE), and that the con- struction of a promenade along the top of a sea wall was ultra vires, although the construction of the sea wall itself was intra vires (R9). It is sometimes claimed that the usual lanquage used in drafting the empowering provisions of public corporations is likely to exclude this type of problem because the provisions frequently confer additional residuary powers in subjective terms to give a corporation the discre- tion to determine the extent of its power (90). Thia type of claim may give insufficient weight to the ability of the courts to control subjec- tively phrased powers by applying tests such as taking into account relevant considerations only (91), bone fides (92), and even reasonable- ness (93). This kind of judicial approach could result in unexpected differences between the powers of a public corporation as detailed in the empowering statute, and those of a commercial company in its memor- andum of association, even where those powers are expressed in the same language, since recent authority suggests that tests of hona fides are irrelevant in determining the powers of a company for the purposes of the ultra vires doctrine (94). The incidental powers doctrine in the legal machinery that a public corporation can lawfully employ makes some specification of powers, incluaing the powers to employ staff, and to sue and be sued, unneces- sary (95). This, nevertheless, occurs in practice (96) and indicates a drafting objective similar to that which influences the inordinate pro- lixity of company memoranda, viz., to obviate the necessity of having to persuade a court that a desirable power falls within the incidental powers principle. The special problem of conforming with the statu- torily prescribed form of company memoranda which dictates the order- ing of their contents (97) does not face those drafting statutory powers of public corporations, and use is made of this flexibility (98). Coer- cive powers must, however, as mentioned earlier, be conferred by statute (99).

Commercial Companies

Where a public enterprise takes the form of a commercial company, the government accepts the normal principles of the company law govern- ing the powers of a company. The basic principle is a logical extension of the doctrine applying to corporations (100). Company law permits formation of companies with certain objects specified in their memoranda of association, and the powers of a company are limited by reference to those objects. Using the contents of the memorandum of association, shareholders of a company can determine the company's power. This has resulted in the legal advisers of company promoters taking great efforts to draft formulae that will confer on a company the most extensive powers pos- sible (101). Whether it is acceptable for the law to permit the breadth of powers that the legal profession has succeeded in acquiring for private sector companies is debatable, even in the context of company law. The prac- tice conflicts with an underlying policy arising out of the evolution of the limited company which is that its legal privileges should be available for limited and readily ascertainable purposes. The same objection applies to a company which is a public enterprise, as extensive legal powers would tend to facilitate the exercise of uncontrollable and irresponsible governmental power. In addition the motives behind the formation of a public enterprise would be expected to be free from the incentive to private promoters of companies to give themselves the maximum choice of future options. In practice, however, those drafting memoranda of association of public enterprise companies make use of all the techniques adopted for the memoranda of private sector companies. Though this point would not be noteworthy in relation to companies that became public enterprises through government purchase, it applies to companies formed initially as public enterprises. See, for example, the memoranda of association of National Hotels and Properties Ltd. in Jamaica, and Barbados Dairy Industries Ltd. in Barbados. Despite the comprehensive powers in their articles of association, a commercial company cannot acquire proprio motu coercive powers such as those of making by-laws, acquiring property or infrinqing on proper- ty rights. Such powers can only be conferred on companies by legis- lation, and where it has been conferred (102) sources other than the Companies Act and the company documents need to be reviewed to ascertain the total extent of the company's powers.

Controls Over Public Enterprises

Ministerial Control

Ministerial control is in some degree a normal feature of a public enterprise. The term public enterprise refers to qovernmental activity and in the Westminster model constitutional systems, governmental con- notes activity under ministerial direction and control. The legal rules governing the exercise of ministerial control vary according to whether the enterprise is a departmental enterprise, a public corporation or a commercial company enterprise. For departmental public enterprises, the law relating to ministerial control operates in the context of the basic constitutional law qoverning exercise of the executive power of the state. It is therefore theoret- ically possible in the monarchies for a departmental public enterprise to exist without any legal authority other than that provided by the con- stitution and common law. In Jamaica in 1960 a colonial law was repealed on the grounds that it was unnecessary for this reason (1031, and the Airports Act of Barbados consists merely of a regulation con- ferring power on the minister, illustrating confidence that special pro- vision for the minister's departmental authority as head of the Ministry of Civil Aviation is not required. In this type of situation, ministerial control depends on the constitution's disposition of the executive power of the Crown, which appears to comprise solely the residual common law prerogative power (104). The Governor General may exercise the Crown's powers (1051, and must generally do so on the advice of a minister acting under the general authority of the cabinet (106). It is normal for portfolios to be assigned to ministers under the authority given by the constitution, so that the normal source of instructions to departments within the minis- ter's portfolio is the minister, speaking for the Crown (107). In the republic of Trinidad-Tobago and in Guyana the situation is similar but for one formal difference: in those states, all the common law powers of the Crown have been abrogated by statute and trans- ferred to a new and artificial legal concept, 'the state', to be exercised by the president in his representative capacity (108). This legislation seems to deprive of all content the constitution's conferral of executive power on the president. Because the constitutions of the republics generally require the president to exercise presidential powers, whether conferred directly by the constitution, statute or common law, on the same advice that the Governor General must accept in the monarchies (1091, the only significant operational difference in the republics from those of the monarchies appears to be the absence of the intermediary function of the Governor General. In practice, the use of statute to confer powers on the Crown in addition to, or substitution for common law powers is common in the monarchies. All such powers surviving from prerepublican times have, in the republics, been appropriated for the state along with the Crown's common law powers, and there is nothing to prevent new conferrals of power on the president. Conferring of power by statute by name on the Crown or the Governor General in the monarchies, or the president in the republics, leaves the minister's directing function unimpaired. This also applies where a statute confers the power on a department by name, as in the case of the Waterworks Department in Rarbados (110). The statutory conferral of power can also strenqthen the minister's position, by naming the minister as the recipient of the power (111). FinaHy, there are cases where statutory powers are conferred on a civil servant, thus excluding to that extent the minister's directing function (112), but leaving the minister residual controlling functions such as rule-making powers (113). The overall effect of the various ways of assiqning ministerial con- trol of departmental enterprises is usually in law much more than mere control. Ministerial control encompasses direction and management, sub- ject to statutory restriction. There is, however, one significant weak- ness in the minister's position. In departmental public enterprises staffing is insulated from political control by the constitution's design, because appointments and dismissals are generally subject to the control of a public service commission (114). There are, however, some key exceptions. The prime minister plays a role in the appointment of permanent secretaries, heads and deputy heads of departments in Barbados and Trinidad-Tobago. This role is consultative in Barbados and consists of veto power in Trinidad-Tobago (115). In Rarbados, unestablished posts outside the service commission's control can be created within government departments (116). In Jamaica and Guyana the prime minister has a consultative role in the appointment of permanent secretaries (117), and all the prime ministers have the power of transfer of permanent secretaries (118). Apart from in Guyana, ministerial control in the public corporations is to some extent subject to the vaqaries of the ad hoc nature of the process of the corporation's creation. Each corporation is usually created by a new statute, and the flexibility of the constitution's allocation of executive power leaves parliament considerable room for manoeuvre in designing the corporation's manaqement and control struc- ture. Generalisations can therefore relate only to patterns subject to exception. But there does seem to be a pattern whereby ministerial control depends legally on two facets: control of appointment and dis- missal at crucial levels, and express powers of direction. Statutes creating public corporations characteristically provide for the appointment of governing boards by a minister (119) and also for removing persons from these boards at the will of the minister (120). Although staff appointments are normally the responsibility of the board so constituted, ministerial control is frequently reinforced by a pro- vision requiring ministerial approval of any appointment above a certain salary level (121). It is normal for legislation creating public corporations to qive express powers to ministers to direct the exercise of their functions (122) and in some cases to limit this power by requiring that the direc- tions should be general (123). There are, however, disagreements between members of boards and ministers over the exercise of this power (124). Where the power to give directions is limited to qeneral directions, ministerial control seems to be designed to amount to less than the normal power of direction of a departmental public enterprise, and an attempt to give the puhlic corporation independence. On the other hand, it is naive to suppose that ministerial control over higher level appointments, in contrast to the relative tenuousness of such control in relation to departmental public enterprises, does not play a part in decisions on whether to constitute a public enterprise as a government department or as a public corporation. In the commercial company category, ministerial control is exercised within the framework of the general company law. The qovernment's control of enough shareholding to have its proposals adopted at com- pany meetings normally enables the government to control the appoint- ment and removal of directors (1251, in addition to its normal powers as a company shareholder in a general meeting. The government has the same problems of exercising control of a commercial company as any other shareholder with a controllinq interest in a company. These include the provisions of company law which pro- tect in some degree the interests of minority shareholders (126), and provisions of articles of association, under which directors enjoy powers of management to the exclusion of the shareholders (1771, to exclude the possibility of a shareholders' veto or right of initiative in relation to some important decisions. Ministers have less direct power in decision making in commercial public enterprises, than in the public corporation and departmental forms. Exercising control in commercial companies depends on the indirect mechanism of controlling the selection of the controllers. A general mechanism that can be used to some extent as a means of ministerial control of public enterprises is a commission of enquiry. Provision is made by statute in all the principal jurisdictions for the availability of an ad hoc commission (128) with the power to summon witnesses and a duty to report (129). The will of the qovernment of the moment is decisive in establishing a commission and implementing its report (130). Commissions of enquiry can be, and have been used to hold public investigations into the activities of a public enterprise (131). A commission of enquiry is a cumbersome device for controlling public enterprises and tends to be viewed with disfavour by legal writers for a number of reasons, including the absence of safequards for persons whose interests may suffer as a result of such proceedings (132), their inadequacies as machinery for discoverinq the truth (133), and the possibilities of their exploitation for ulterior political purposes (134). Notwithstanding the limitations and qualifications attached to the various means of control of public enterprises by ministers, very exten- sive legal powers are available for such control. Dissatisfaction with public enterprises has nevertheless been expressed and actions that indicate dissatisfaction have been taken. Governments sometimes seem to consider that ensuring that public enterprises conform with qovern- ment policy is a major problem. Rather than being a legal problem, however, it is a problem any administrator faces in trying to impose his or her will in a large organisation where direct central supervision is impractical.

Parliamentary Control

Indirect parliamentary control of public enterprises is theoretically ultimate and absolute, because parliament makes and unmakes qovern- ments. The balanrino determinants to the exercise of this power by parliament arise from the executive's control over the duration of par- liament and from party discipline. 'There are, however, many more direct forms of control that parliament can exercise over public enterprises. One lies in purse- strings power. Many public enterprises need subventions to continue to operate, either because of their inability to earn enough revenue to be self-financing, or because they do not have separate accounts but operate through the consolidated fund. Debates on resolutions or bills to authorise the necessary subventions provide an opportunity for par- liamentary inquiry into the operations of public enterprises. With the exception of Guyana (1351, public corporations are normally created by ad hoc acts of parliament, which means that there is parliamentary control of their constitutions and powers at inception. Even under the Guyanese system, there is a form of parliamentary con- trol from the beginning, because although the minister can create a pub- lic corporation by exercising powers of delegated legislation, the instrument must be laid before parliament which has the option to nullify the instrument by resolution (136). This form of control may not, in practice, be as complete as creation by an ad hoc statute, though opportunities for making amendments are included (137). Public corporations are the only types of public enterprise subject to initial parliamentary control of their constitutions. A departmental public enterprise can be created without parliamentary authority by the exercise of the royal, or state, prerogative, and a commercial company public enterprise can be created by the use of the standing authority for the creation of corporate bodies constituted by the companies act, or by the purchase of a preexisting company, without special parlia- mentary authority (138). The ordinary parliamentary devices for controllinq qovernment activity generally apply in some measure to qovernment activity throuqh public enterprises. For example, new regulatory powers that require recourse to parliament may be needed. Under traditional British parliamentary procedure the freedom of a minister to decline to answer questions on matters for which he has no responsibility can cause prob- lems as it permits major areas of the activities of public corporation or commercial company public enterprises to escape scrutiny (139). It should however be possible to frame questions relating to the use or nonuse by a minister of his directory and requlatory powers in a way that will conform with parliamentary procedure (140). Every public enterprise is subject to some kind of financial accounting procedure. For departmental public enterprises this proce- dure entails providing an opportunity for scrutiny by a parliamentary committee (141). Public corporations may be required by their statutes to present their accounts to parliament (142, 143). If a commercial company private enterprise has the status of a private company under a companies act its obligation to account may be purely internal to the company (144). If on the other hand it is a public company under a companies act the accounts must be made available for public inspection (145), and some special categories of companies are obliged to publish periodic statements of their assets and liabilities (146). The new Trinidad-Tobago constitution has made a substantial change to this system by introducinq a general rule of financial accountability to parliament that is applicable to all public enterprises (147). The problem of implementing the leqal requirements for the presentation of accounts by public enterprises, and also by some other government departments, is both difficult and widespread. Cases of default can be cited from Barbados, Jamaica and Trinidad-Tobago. The problem raises questions on the effectiveness of this ex post facto form of parliamentary control of public enterprises. A special form of par- liamentary machinery which can be used is the creation of standing or ad hoc parliamentary committees for considering matters relating to pub- lic enterprises (148). No form of parliamentary control, however, is immune from the obvious defect that the executive runs public enterprises, and also con- trols parliament through the party system. The curative effect on this problem that independent-minded backbenchers may provide is structur- ally unlikely in West Indian states because it is generally expected that a majority or near-majority of the qoverning party is likely to be hold- ing paid office. The effectiveness of parliamentary control depends on the extraparliamentary publicity which the opposition can ohtain for its protests (149).

Public Control

Ultimate public control of public enterprises, as of any other governmental activity in a democratic society, is based on the ballot box. At that level, all the traditional problems of democracy, including the isolation of particular issues in elections, the integrity of the election procedure, public access to information, and the access of dis- senting groups to the media are relevant. Any more direct form of legal control over public enterprises by the public as a whole would, in the absence of specific statutory provision, have to be exercised via parliamentary control, or through special powers of an attorney general. Specific statutory provisions that appear to cater for the public control aspect have sometimes been made. These provide for membership of the enterprises themselves, advisory boards, or panels by persons representative of the public interest (150). Public control not only refers to control by the public as a whole but also to control by individual members of that public. In this sense, the question of public control engages the qreat body of law relating to the legal contestability of the exercise of governmental power in general, in its relationship to the special situation of public enterprises. There can generally be no question of any legal challenge from the public to the choice of policies by any governmental agency, including a public enterprise, where those policies lie within their powers. Tedress lies only through the ballot box. Where a governmental agency exceeds its legal powers, however, either by acting illegally or defaulting in the discharge of its legal duty, identifying the possible legal sanction for such excess of power is technically complex. As a general rule, the only existing public remedies that do not require the demonstration of prejudice to a particular complaininq party are in the control of the government. The exception is complaints that amount to criminal allegations, and for these public prosecution is con- trolled in some states by a civil servant with a constitutionally pro- tected immunity from political direction (151). Where there is no criminal allegation, the attorney general has power to take proceedings for enforcing the law (152). A member of the public may obtain the cooperation of the attorney general in bringing an action, hut it has recently been settled that there are no legal means of compelling an attorney general to cooperate (153). Where a particular member of the public is prejudiced by illegal action or inaction by a government agency many avenues of legal redress exist, although not all will be applicable to every case. In some situations, direct action or inaction and collateral challenqe may be available. Members of the public may resist the illegality, even by the use of reasonable force, and rely on the circumstance of illegal- ity as a defence if proceedings are brought against them (154). A court can also rule that action by a public agency is illegal. This ruling can be made in anticipation, as in the procedures for prohi- bition (155) and injunction (156), which result in the court issuing a restraining order against the agency. Where the complaint is of illegal default by the public agency, the procedures for mandamus (157) or for a mandatory injunction (158) may lead to a court order directing action by the public agency. Where the complaint is ex post facto, and to the effect that what has been done was invalid, the procedures for certio- rari (159) and declaration (160) may serve. Where the action was valid but discloses an error of law on the face of the record, certiorari may still be useful (161). Where the action of the public agency has vio- lated a private right, a civil action for damages may be available (162). These remedies have numerous technicalities and there is danger that meritorious cases may fail because of the technical pitfalls. For example, certiorari, prohibition and mandamus are not available against either the Crown or state, or against a private body. This immunity will not necessarily protect a civil servant or a Crown or state aqency (163), but may mean that the remedies are not available against commer- cial company public enterprises, which are in law private entities (164). The prejudice to the individual that must be shown in relation to the different remedies can vary. What will be sufficient prejudice to justify certiorari may be insufficient for a declaration (165). Certiorari and prohibition are often restricted to cases where the illegality relates to the discharge of a 'judicial' function (166). In some cases, available remedies are specified by legislation and may be additional to (1671, or exclusive of the qeneral remedies (168). Where the illegality involves the state violating the fundamental rights provisions of the constitution, the recent privy council decision in Maharaj v. A.-G (Trinidad-Tobago No. 2) (169) appears to have settled that the law of remedies is governed by the constitution itself rather than by the general law. The law relating to remedies is an area in which the form taken by a public enterprise can make a difference. Commercial company public enterprises do not appear to be vulnerable to any of the public law remedies, such as certiorari, prohibition, mandamus, and the constitu- tional remedies for violations of fundamental rights, but only to those available under private law, such as collateral challenge, injunction, declaration and damages. Although the Crown or state's immunity to injunction and the prerogative remedies do not in principle protect the servants of the Crown or state, that immunity could make challenginq a departmental public enterprise more difficult by virtue of the rule against indirectly coercing the Crown in certain instances (170). The West Indian jurisdictions have recently shown signs of beinq attracted to the relatively recent institution of the ombudsman as one solution to some of the problems of the lacunae in administrative law, as a system for redressing grievances of individual members of the pub- lic. The office of ombudsman has thus been established in the consti- tutions of Guyana (171) and Trinidad-Tobaqo (172) and by ordinary law in Jamaica (173). The ombudsman system is designed to be a means of controlling public enterprises by members of the public. Its jurisdiction includes not only areas of departmental government activity but also some public enterprises (174). The aggrieved member of the public may take the initiative in invoking the assistance of the ombudsman without having to rely on the executive qovernment to initiate the procedure (175). In this respect the ombudsman system contrasts with the commission of enquiry device (1761, although it is similar in that it also functions by investigation and nonbinding report, albeit of a less formal and public kind, Current controversy relating to the adequacy of the administrative law system is as relevant to the question of public controls of public enterprises as it is to issues of public control of any area of qovern- ment activity. Areas of controversy include whether administrative law should be the business of special courts (1771, whether the rules gov- erning locus standi should be relaxed to permit vindication of qovern- mental legality by persons without a specific personal qrievance to redress (178), and whether there should he a wide-scale rationalisation of the structure of judicial remedies to eliminate technical traps (179). Questions of resources probably render the arguments over the conseil d'etat system of remote practical interest in the Commonwealth Caribbean at the present time. The question of the rationalisation of administrative law remedies is undoubtedly of practical significance, but relates more to privately motivated challenge to qovernment action than to questions of control by the qeneral public. The locus standi issue, however, is important. The legitimacy and importance of public concern with the activities of government cuts across all ideological differences in the present-day Caribbean. The law as it stands is defective in not providing any clear recognition of a right of public vindication of legality by legal proceedinqs aqainst public authorities of all kinds, including public enterprises, without obtaining the cooperation of the attorney general. The law could rea- sonably be required to give better service in this respect to the objec- tive of public control over the activities of public enterprises.

References

1. An attempt has been made to state the law as of the end of 197fl, the date of the conclusion of the Caribbean Public Enterprises Pro- ject, although there is occasional reference to later material. References to the law of Guyana do not take the new 1980 Consti- tution into account. 2. W. Friedmann, 1971. The state and the rule of law in a mixed economy. London, p. 55. 3. The exception is the post office in Guyana which has been a public corporation since 1977: Post and Telegraph (Amendment) Act 1976 (Guyana 1976-13). 4. See the Airports Authority Act (Jamaica). 5. See the Jamaica Railway Corporation Act (Jamaica). 6. See the Transport Board Act (Barbados, cap. 297). 7. See the Public Corporations Act (Guyana, cap. 19:05) and the comment by A. Alexander, April, 1977. Leqal advantaqes of public enterprises. C.P.E.P. Workshop paper. 8. Nottingham No. 1 Area Hospital Management Committee v. Owen (1958) 1 Q.B. 50. Central Control Board (Liquor Traffic) v. Cannon Brewery Co. Ltd. (1919) A.C. 744. R.W.N. Dias, 1970. Jurisprudence, 3rd. ed. London, pp. 324- 332. F.W. Maitland, 1900. The corporation sole. Law Quarterly Review, 16, p. 335. In West Indian law, one shareholder is insufficient, but the second shareholder may be a mere nominee: see e.g., the Companies Act (Barbados, cap. 3081, sections 4 and 1.3; the Companies Act (Jamaica) sections 3(1) and 33; the Companies Ordinance, (Trinidad and Tobago cap. 31 no. 11, sections 3(1) and 30; Salomon v. Salomon & Co. Ltd. (1897) A.C. 22, p. 30, per Lord Halsbury , L.C. For West Indian cases in which the question of the effects of cor- porate personality has loomed large, see A.G. v. Antigua Times Ltd. (1976) A.C. 16 and Collymore v. A.G. (1967) 12 W.I.R. 5, affirmed on appeal (1970) A.C. 538. In the Antigua Times case, the Privy Council refused to accept the argument that only a natural person, as distinct from a corporation, was entitled to the freedom of speech protection guaranteed by sections 10(i) and 15 of the Constitution of Antigua. In the Collymore case, Wooding, C.J., rejected the claim of a trade unionist that his right to privacy had been infringed by a legislative provision authorising entry and search of the office of the union, on the ground that he lacked locus standi; the Privy Council, however, disagreed, taking the point that since the union was not incorporated an infringe- ment of the union's right would necessarily affect the rights of each individual member ((1970) A.C., p. 549). See for example, D v. N.S.P.C.C. (1977) 1 All E.R. 589-609, per Lord Simon. There are legal problems arising from the fact that different states have a common Head of State and from the doctrine of the indivisibility of the Crown, see, e.g., E.A. Laing, 1974. Crown indivisibility, governmental liability and other problems in the West Indies Associated States. International and Comparative Law Quarterly, 1970, 23, p. 127, discussing the Milne case, unreported, suits no. 201 and 212, Grenada. Sutton's Hospital Case 10 Co. Rep. 23 at. 29b; Crown Proceedings Act (Barbados cap. 197), section 33(1). But see F.W. Maitland, op. cit., and note 16. Town Investments Ltd. v. Dept. of Environment (1977) 1 All E.R. 813-833, per Lord Simon. Ibid. p. 818, per Lord Diplock. Constitution of the Republic of Trinidad and Tobago Act 1976 (Trinidad and Tobago 1976-4), section 6; Republic Act (Guyana cap. 1:02), section 4(1). The Public Corporations Act (Guyana, cap. 199:05), sections 14 and 46; Alexander, op. cit., p. 7. L.C.B. Gower, 1969. The principles of modern company law. 3rd. ed., London, cap. 2 and 3. Many universities, including the University of the West Indies, are chartered corporations. Other examples are the British Broadcast- ing Corporation and the Hudson's Bay Company. Town Investments Ltd. v. Dept. of Environment, oq. cit., p. 833, per Lord Simon. An example seems to be the M~n~sterof Finance in Trinidad and Tobago: see the Minister of Finance (Incorpora- tion) Act 1973 (Trinidad and Tobago 1973-5). Nelson, R. 1978. The corporation sole: public money in private companies. The Lawyer (Quarterly Journal of the Trinidad and Tobago Rar Association), January-March, 1(2), p. 7. See, e.g., the United Theological College of the West Indies (Incorporation and Vesting) Act (Jamaica 1973-46). See e.g., Tamlin v. Hannaford (1950) 1 K. R. 18 and the cases cited in notes 8 and 9. For a recent brief statement of a rationale for not permitting form to predetermine consequences, see D. v N.S.P.C.C., op.cit. pp. 609-610, per Lord Simon. See, e.g., Barbados Constitution, section 94; Jamaica Constitution, section 125; and Trinidad and Tobago Constitution, section 121. See e.g., Barbados Constitution, section 90(1); Jamaica Constitu- tion, section 124(2). Trinidad and Tobago is now an exception to the general rule, because the president only has to consult the prime minister and does not have to act on his advice: Trinidad and Tobago Constitution, section 120(2). Barbados Constitution Amendment Act 1974, (Rarbados 1974-34), section 16 amending section 81 of the Constitution, and section 26, amending section 99 of the Constitution. Statutory Authorities Act 1966 (Trinidad and Tobago 1966-1). It is no longer possible in Trinidad and Tobago to challenge the validity of legislation for inconsistency with the prerepublican Constitution: See Act 1976-4, op. cit. (ref. 181, section 18. Sections 105(4)(c) and (d) of the 1962 Constitution. Barbados Constitution, section 117(7) (e), inserted by the Barbados Constitution Amendment Act (Barbados 1974-34) section 34; Trinidad and Tobago Constitution, section 3(5). See, e.g., Barbados Constitution, sections 94(1) and 117( 1); Jamaica Constitution, sections l(1) and 125(1); Trinidad and Tobago Constitution, sections 3(1) and 121(7). (1825) 5 Bing. 91, pp. 107-108. (1942) A.C. 561. (1949) 1 K.B. 656. Ibid., p. 663. Guyana Civil Appeal No. 12, 1973. Article 48; the parallel provision in the Trinidad and Tobago Constitution is section 06. These provisions do! admittedly, recognise the overriding power of a law, but the judgements do not suggest that such an overriding law was in issue. The point was not related to any absence of authority to pay an office-holder whose post was not mentioned in the estimates: the Court of Appeal held that the employee did not hold a public office even although parliament had, albeit indirectly, provided funds from which he could lawfully be paid. See Ref. 35. See, e.g., Barbados Constitution, section 160; Guyana Constitu- tion, section 119(6); Jamaica Constitution, section 136; Trinidad and Tobago Constitution, section 129(3). Re Langhorne's Application (1969) 14 W.I.R. 353; Re Sarran'a Application (1959) 14 W.I.R. 361; Evelyn v. Chichester (1970) 15 W.I.R. 410; Re Arthur & Hermanstyne (1972) 19 W.I.R. 20, per Luckhoo, C., pp. 26-33. See, e.g. R. v. Commissioner of Police ex P. Reid, not yet reported, Suit No. M.21 of 1975 (Jamaica). Thomas v. A.G., not yet reported, No. 2227 of 1972 (High Court of Trinidad and Tobago); reversed (but, it is submitted, without prejudice to this point) by the Trinidad and Tobago Court of Appeal, Civil Appeal No. 68, 1976, not yet reported. Nobrega v. A.G. (1969) 3 All E.R. 1604. This doctrine has since been held to be irrelevant to Caribbean type constitutions. See, Thomas v. Attorney General (1981). 3 W.L.R. 601. See ref. 39. Ridge v. Baldwin (1964) A.C.40; Evelyn v. Chichester (1970) 15 W.I.R. 410. Barnard v. National Dock Labour Board (1953) 2 Q.B.18; Re Sarran's Application (1969) 14 W.I.R. 361. Ridge v. Baldwin, op. cit.; Hill v. C.A. Parsons Ltd. (1972) 1 cap. 305. For example, the Industrial Relations Act (Trinidad and Tobago 1972-23), section lO(4). See Chuks Okpaluba and Dale Rubin, 1974. Dismissal and reinstatement in a West Indian jurisdiction: Anglo-American Law Review, 3, p. 251. Cf. Vidyodaya University of Ceylon v. Silva (1965) 1 W.I.R. 77, criticised by H.W.R. Wade, 1971 Administrative law, 3rd ed. Oxford, p. 205, and by Lord Wilberforce in Malloch v. Aberdeen Corporation (1971) 2 All E.R. pp. 1278-1295. See ref. 48. The Trinidad and Tobago Act, however, could be repealed by ordinary parliamentary process to achieve the same result, because its provisions enjoy no constitutional entrenchment. Thomas v. Attorney General might have less influence in Guyana than in other jurisdictions since the Privy Council is no longer Guyana's jurisdiction of ultimate instance. No. 5 of 1976. Ibid. For the reversal by the Judicial Committee of the Privy Council of a remarkable decision by the Court of Appeal of Trinidad and Tobago that the police were not an organ of the state for this purpose, see Thornhill v. A.-G (Trinidad and Tobago), (1980) 2 W.L.R. 510. See ref. 19. Workers Savings and Loan Rank Act (Jamaica), section 7. Barbados trade team for West Germany. 1977. Barbados Advocate-News, February 17, p. 1. Hohfeld, W.N., 1913. Some fundamental legal conceptions as applied in judicial reasoning. Yale Law Journal 23, p. 16; Albert Kocourek, 1927. Jural Relations. Indianapolis, pp. 361 ff. See, for example, the meaning of the word 'privilege' in the Post Office Act, Jamaica, section 6, which seems to encompass a much broader content than the Hohfeldian concept. See the criticism by Pennycuick, J. in Charterbridge Corpn. v. Lloyds Bank (1970) Ch. 62, p. 71 of dicta of Eve, J. in Re Lee Behrens & Co. Ltd. (1932) 2 Ch. 46, and L.C.R. Gower, 1969, The principles of modern company law, 3rd ed. London, p. 83. Report of the Committee on Company Law Amendment, 1945. (Cmd. 66591, paragraphs 11-12. See Smith v. London Transport Executive (1951) A.C. 555. Cf. T.C. Daintith, 1970. The mixed enterprise in the United Kingdom. In W. Friedmann and J.F. Garner, eds. 1970. Govern- ment enterprise: a comparative study, London, p. 53, 77-78. See, e.g., D.I.C. Ashton-Cross, 1950. Suggestions regarding the liability of corporations for the torts of their servants. Cambridge Law Journal, 10, p. 419-422; Gower, op. cit., pp. 96-98. See, e.g., Dunn v. North Western Gas Board (1964) 2 Q.B. 806; Lowery v. Vickers Armstrong & Co. Ltd. (1969) 8 K.I.R. 603. Discussions in textbooks of the powers of public corporations are remarkably sparse, but there is an extensive literature on the powers of companies and on the royal preroqative, categories which would encompass commercial company public enterprises and departmental public enterprises respectively. W. Friedmann. op. cit. p. 55. See, e.g., D. v. N.S.P.C.C. (1977) 1 All E.R. p. 589-609, per Lord Simon. Republic Act (Guyana cap. 1:02), section 4(1); Constitution of the Republic of Trinidad and Tobago Act (Trinidad and Tobaqo 1976-41, section 6. Barbados Constitution, section 63; Jamaica Constitution, section 68; Trinidad and Tobago Constitution, section 74. Commonwealth and Central Wool Committee v. Colonial Combinq Spinning and Weaving Ltd. (1922) 31 C.C.R. 421. A.G. v DeKeyser's Royal Hotel (1920) A.C. 508-526. Barbados Constitution, section 63(3); Jamaica Constitution, section 68(3); Trinidad and Tobago Constitution, section 74(3). A.G. v. DeKeyser's Royal Hotel, op.cit., Sabally v. A.G. (1965) 1 Q.B. 273; R. v. Kent JJ. exp. Lye (1967) 2 0.6. 153. See, e.g., the Post Office Act (Jamaica) section 13; the Water- works Department Act (Barbados cap. 361, section 58. See, e.g., the Post Office Act (Jamaica), section 5 (Postmaster- General). For an example of the conferral of powers on a Depart- ment eo nomine, see the Waterworks Department Act (Rarbados, cap. 361, Part Ill. For the dissolution of corporations by scire facias proceedinqs, see Halsbury's Laws of England, 4th ed., Hailsham ed., 9 para. 1396. For an example of the recognition by the courts of this kind of residuary prerogative to set up bodies, see R. v. Criminal Injuries Compensation Board ex p. Lain (1967) 2 Q.A. 864. A.G. v. Great Eastern Railway (1880) 5 App. Cas. 473; Ashbury Railway Carriage & Iron Co. v. Riche (1875) L.R. 7 H.1-. 653. A.G. v. Great Eastern Railway. Post Office Act (Jamaica), Section 29. Campbell v. Hall (1774) 1 Comp. 204; \Nalker v. Raird (1892) A.C. 491. Cf. Post Office v. Estuary Radio Ltd. (1967) 1 W.L.R. 1396. Burmah Oil Co. Ltd. v. Lord Advocate (1965) A.C.75; Nissan v. A.G. (1970) A.C.179. See, e.g. Post Office Act, (Jamaica), section 7(l)(a) and Inter- pretation Act, (Jamaica), section 29(b) (departmental public enter- prise, power to make regulations governing the puhlic carryinq punishment for their violation); Water and Sewerage Authority Act (Trinidad and Tobago 1965-16), section 71, and schedule 2 (public corporation, power of compulsory acquisition of land); Electric Lighting Act (Jamaica), sections 18, 36-39, 41-42 (commercial com- pany, powers of entry on private premises). In this last example, the powers had been conferred on the Jamaica Public Service Co. Ltd. in 1958, when it was still a private sector company and before its takeover by the government. Cf. A.G. v. Great Eastern Railway, op. cit., p. 4R6, A.G. v. Fulham Corpn. (1921) 1 Ch. 440, pp. 449-450. A.G. v. Great Eastern Railway, op. cit. See, e.g., Roberts v. Hopwood (1925) A.C. 578; Padfield v. Minister of Agriculture (1968) A.C. 997. Cooper v. Wandsworth Board of Works (1863) 14 C.R.(N.S.)180. 88. A.G. v. Fulham Corpn. (1921) 1 Ch. 440. 89. Webb v. Minister of Housina and Local Government (1965) 1 W.I.R. 755. William A. Robson. 1962. Nationalised industrv and oublic owner- ship, 2nd ed. London. pp. 71-72; Gower, op.cit., p. 239. Although these comments were made in relation to United Kingdom statutes, they would have been equally apposite to provisions of regional legislation: see e:q., the Natural Gas Corporation Act (Barbados cap. 280), sectlon 9(2)(d); the National Petroleum Company Act (Trinidad and Tobago 1969-33) section 6(h). See also, in relation to the Public Corporations Act (Guyana cap. 19:05), section 5(1) (d), Alexander, A. 1977. Legal advantages of public enterprises, C.P.E.P. Workshop paper, April. See ref. 86. deSmith, S.A., 1973. Judicial review of administrative action, 3rd ed., London, pp. 293 ff; Re Rurns and Township of Haldimand (1965) 52 D.L.R. (2d) 101; Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (1948) 1 K.R. 223 at 228-229, per Lord Greene M.R. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. Charterbridge Corpn. v. Lloyds Rank (1970) Ch. 62, p. 74. Schmitthoff, C.M., Kay, M.S. and Moore, G.K. 1976. Palmer's Company Law, 22nd ed., London, 1. pp. 88-89. See, e.g., Workers' Savings and Loan Rank Act (Jamaica), section 21; Natural Gas Corporation Act (Barbados cap. 280), section 12; National Petroleum Company Act (Trinidad and Tobago 1969-33), Section 11. Companies Act (Barbados cap. 3081, section 5(a)( iii), llh(1) and 3rd schedule, Form B; Companies Act (Jamaica), section 4(l)(c), 13(a) and 1st schedule, Table 3; Companies Ordinance (Trinidad and Tobago cap. 31 no.l), sections 4(l)(c), 13(1) and 1st schedule, Table 5. For draftsmanship relying heavily on the company memorandum model, see the Workers' Savings and Loan Bank Act (Jamaica), section 4 and 2nd schedule. The National Petroleum Company Act (Trinidad and Tobago 1969-33), on the other hand, distributes powers under a threefold classification of functions, qeneral powers and specific powers far removed from the Companies Act form of memorandum of association. See ref. 83. Ashbury Railway Carriage and Iron Co. v. Riche (1fl75) L.R. 7 H.L. 653; A.G. v. Great Eastern Railway (1880) 5 App. Cas. 473. See e.g. K.W. Mackinnon and R. Ruchanan-Dunlop, 1956. Palmer's company precedents, 17th ed., 1-ondon, Pt. I, pp. 313- 368; Bell Houses Ltd. v. City Wall Properties Ltd. (1966) 2 Q.9. 656; Cotman v. Brougham (1918) A.C. 514. Rut contrast Re Introductions Ltd. (1970) Ch. 199. See ref. 83. See the debate in the Jamaica Legislative Council on the second reading of the public buildings (Superintendence) (Repeal) Act 1960 (Jamaica 1960-65): Jamaica Hansard (Legislative Council), Session 1960-61 No. 3, p. 30 (9 December 1960). Barbados Constitution, eection 63(1); Jamaica Constitution, section 68(1). Cf. Commonwealth and Central Wool Committee v. Colonial Combing Spinning and Weaving Ltd. (1922) 31 C.L.R. 421. Barbados Constitution, section 63(2); Jamaica Constitution, section 68(2). Barbados Constitution, section 32(1); Jamaica Constitution, section 32(1). Barbados Constitution, section 72; Jamaica ronstitution, section 77. Cf. Guyana Constitution, section 36; Trinidad and Tobaqo Constitution, section 79. Republic Act (Guyana cap. 1:02), section 4(1); Constitution of the Republic of Trinidad and Tobago Act 1976 (Trinidad and Tobaqo 1976-4), section 6. Executive power is still conferred on the President (Guyana Constitution, section 33(1); Trinidad and Tobago Constitution, section 74(1)), but it is not at all clear what effect, if any, this provision can have while the statutory provi- sions cited remain in force. Guyana Constitution, section 40(1); Trinidad and Tobago Consti- tution, section 00(1). Waterworks Department Act (Barbados cap. 361, Part 111. See, e.g., the Post Office Act (Jamaica) section 13; the Water- works Department Act (Barbados cap. 36), section 58. See, e.g., the Post Office Act (Jamaica), section 5 (Postmaster- General). See, e.g., the Post Office Act (Jamaica), section 7(l)( a). Barbados Constitution, section 94; Guyana Constitution, section 96; Jamaica Constitution, section 125; Trinidad and Tobaqo Consti- tution, section 121. Barbados Constitution, section 99; Trinidad and Tobago Constitu- tion, section 121(3)-(5). Barbados Constitution, section 117(7)(e); Report of the Commission Appointed to Review the Constitution, etc. (Barbados Constitution Review Commission Report), 1979, para. 130. Jamaica Constitution, section 126(1)-(2); Guyana Constitution, sec- tion 99(1). Barbados Constitution, section 99(l)(b); Guyana Constitution, sec- tion 99(2); Jamaica Constitution, section 126(3); Trinidad and Tobago Constitution, section 126(6)(a). See, e.g., Barbados National Bank Act 1978 (Barbados 1978-101, section 7 and First Schedule, section 1; Urban Development Corpor- ation Act (Jamaica), section 3 and First Schedule, section 1; National Petroleum Company Act 1969 (Trinidad and Tobaqo 1969- 33), sections 9(1) and (5). The practice in Guyana under the Public Corporations Act (Guyana cap. 19:05), section 15(2), differs in part from what is described here. See, e.g., Barbados National Park Act 1978 (Barbados 1978-lo), section 7 and First Schedule, section 3; Urban Development Corpor- ation Act (Jamaica), section 3 and First Schedule, section 4; National Petroleum Company Act (Trinidad and Tobago 1969-33), section 9(3). For a contrasting example of limited security of tenure, see Trinidad and Tobago (RWIA International) Airways Corporation Act 1978 (Trinidad and Tobago 1978-501, sections 9, 13. For the Guyana position, see Public Corporations Act (Guyana cap. 19:05), section 15(3). See, e.g., Barbados Marketing Corporation Act (9arbados cap. 2551, section 7; Airports Authority Act (Jamaica), section 20(1); National Petroleum Company Act (Trinidad and Tobaqo 1969-33), section ll(2). For the Guyana variation on this posi- tion, see Public Corporations Act (Guyana cap. 19:05), section 22. 122. See, e.g., Barbados Marketing Corporation Act (Yarbados cap. 2551, section 14; Urban Development Corporation Act (Jamaica), section 5(1); National Petroleum Company Act 1969 (Trinidad and Tobago 1969-33), section 17, Public Corporations Act (Guyana 19:05), section 28(1). 123. See, e.g., Barbados Marketing Corporation Act (Barbados cap. 255), section 14; Urban Development Corporation Act (Jamaica), section 5(1); Port Authority Ordinance 1961 (Trinidad and Tobago 1961-39), section 14, Constitution of the Republic of Trinidad and Tobago Act 1976 (Trinidad and Tobago 1976-4), sec- tion 6(2), and Trinidad and Tobago Constitution, section 80(1), which in combination vest the power of giving directions in the president acting on the advice of the cabinet; Public Corporations Act (Guyana cap. 19:05), section 28(1). 124. See Barnett, C.G. 1977. The constitutional law of Jamaica, p. 129; The Nation (Barbados), 14 April 1978, p. 3, under caption "Carib West issue: BDB head had threatened to resign over loan". 125. See Companies Act (Barbados cap. 3081, Table A, Arts. 78-86; Companies Act (Jamaica), section 75 and Table A, Arts. R9-97. It seems theoretically possible that a qovernment might acquire a previously incorporated company under whose Articles the shareholders were unable to control fully the appointment and removal of directors: cf. Bushell v. Faith (1970) A.C. 1099. 126. See, e.g., the exceptions to the majority rule principle (Foss v. Harbottle (1843) 2 Hare 461) based on the doctrine of "fraud on a minority" (see, e.g., Greenhalgh v. Arderne Cinemas Ltd. (1950) 2 All E.R. 11201, the availability of "just and equitable" winding up (Companies Act (Barbados cap. 308), section 127(f); Companies Act (Jamaica), section 203(f); Companies Ordinance (Trinidad and Tobago cap. 31 no. l),section 161(6); and in Jamaica, the remedy in cases of oppression of minorities (Companies Act (Jamaica), section 196). 127. See Companies Act (Barbados cap. 308), Table A, Art. 71; Companies Act (Jamaica), Table A, Art. 80; Companies Ordinance (Trinidad and Tobago cap. 31 no. l), Table A, Art. 67. Cf. Automatic Self-Cleaning Filter Syndicate Co. I-td. v. Cuninqhame (1906) 2 Ch. 34. 128. Commissions of Enquiry Act (Barbados cap. 112); Commissions of Enquiry Act (Jamaica); Commissions of Enquiry Ordinance (Trinidad and Tobago cap. 7 no. 2). 129. Commissions of Enquiry Act (Barbados cap. 1121, sections 7 and lO(1); Commissions of Enquiry Act (Jamaica), sections 7 and 10; Commissions of Enquiry Ordinance (Trinidad and Tobago, cap. 7 no. 2), sections 7 and 11. 130. The power of establishing a commission of enquiry is vested in the Governor-General or president, as the case may be, and must under the Constitutions be exercised on cabinet advice: Commis- sions of Enquiry Act (Qarbados cap. 112), sections 2(1) and 18, and Barbados Constitution, section 32(1); Commissions of Enquiry Act (Jamaica), section 2 and Jamaica Constitution, section 32(1); Commissions of Enquiry Ordinance (Trinidad and Tobago cap. 7 no. 2) section 2, Constitution of the Republic of Trinidad and Tobago Act 1976 (Trinidad and Tobago 1976-4), section 6(2), and Trinidad and Tobago Constitution, section 80(1). See, e.g., the Report of the Duffus Commission of Enquiry 1977-78 (Barbados), 10 October 1978 dealing, inter alia, with International Seafoods Ltd. and Carib West Airways Ltd. See, e.g., Garner, J.F. 1970. Administrative 1-aw, 3rd ed. pp. 188-189, on the United Kingdom Tribunal of Inquiry procedure. See e.g., the criticisms of the mode of operation of the Warren Commission in the United States, which investigated the assassina- tion of President Kennedy, by Sir Cyril Salmon writinq extrajudi- cially in Tribunals of Inquiry, 1967, pp. 9-13. See, e.g. de Smith S.A. 1977. Constitutional and administrative law, 3rd ed. ed. Street, de Smith and Brazier, p. 524, n. 5; Salmon, op. cit. p. 6. Public Corporations Act (Guyana cap. 19:05), section 46. The Public Corporations Act (Guyana cap. 19:05), section 46(1) provides that the order establishinq a public corporation shall be subject to negative resolution, for the meaning of which see Interpretation and General Clauses Act (Guyana cap. 2:01), section 22( 1). Interpretation and General Clauses 4ct (Guyana cap. 2:01), section 22(l)(b). In Barbados, Jamaica and Trinidad and Tobago the procedure would not without special enactment include the opportunity to make amendments: Interpretation Act (Barbados cap. 11, section 41(7) and (8); Interpretation Act (Jamaica), section 30(4) and (5); Interpretation Act 1962 (Trinidad and Tobago 1962-2), sections 45(6) and (7). Financial authorisation will be needed for the payment of the pur- chase price in this case, but such authorisation need not be suffi- ciently specific to alert parliament to what is in the offing. Cf. Barbados Constitution Review Commission Report, para. 126. Lidderdale, D. ed. 1976. May's parliamentary practice, 19th ed. pp. 330-331. Ibid. Barbados Constitution, sections 113(2) and (3); Jamaica Constitu- tion, sections 122(1) and (2); Trinidad and Tobaqo Constitution, sections 116(2), (4) - (5). See, e.g., Natural Gas Corporation Act (Barbados cap. 280), sections 21(4) and (5); Urban Development Corporat~on Act (Jamaica), section 12(2); National Petroleum Company Act 1969 (Trinidad and Tobago 1969-33), section 20(2). See, e.g. Workers Savings and Loan Bank Act (Jamaica), section 6(1). Companies Act (Barbados cap. 308), section 27(3); Companies Act (Jamaica), section 30(3) (although a Crown shareholdinq might arguably disqualify the company from the exemption under that subsection); Companies Ordinance (Trinidad and Tobaqo, cap. 31 no. 11, section 108 (3). Companies Act (Barbados cap. 3081, sections 27(3) and (4), 213(2); Companies Act (Jamaica), section 112, 123(1)-(31, 335(1); Companies Ordinance (Trinidad and Tobago cap. 31 no. 11, sections 98, 106(4), 10-(3. The nature of the accounts required by the Barbados Act is particularly circumscribed by the exclusion from the obligation of a profit and loss account (section 27(3)). Companies Act (Barbados cap. 308) section 106; Companies Act (Jamaica), section 152. Trinidad and Tobago Constitution, section 119(8) and (9). 148. For the British precendent of the House of Commons Select Commit- tee on Nationalised Industries, see Lidderdale, op. cit. pp. 673- 674. 149. There is obvious scope for a detailed study of the fate of public enterprises in the proceedings of the regional parliaments. For an example of such a' study in relation to East Africa, see Kiapi, A. 1977. Parliament and the public corporation in East Africa. Public Law, p. 345. 150. Cf. Jamaica National Trust Act (Jamaica), section 3(2) (members appointed by the Jamaica Historical Society and the University of the West Indies); the (subsequently repealed and amended) provi- sion of the Tourist Board Ordinance 1957 (Trinidad and Tobaqo 1957-141, section 3(2) (now replaced by a new subsection inserted by the Statutory Authorities (Composition and Membership) Act 1969 (Trinidad and Tobago 1969-91, section 3). 151. Barbados Constitution, sections 79 and 79A; Jamaica Constitution, section 94. In Trinidad and Tobago the Constitution subjects the functions of the Director of Public Prosecutions to the control of the Attorney-General: Trinidad and Tobaao Constitution. sections 76(2), 90. 152. A-G v. Harris (1961) 1 Q.B. 74. 153. Gouriet v. union of Post Office Workers (1977) 3 All E.R. 70. 154. Stroud v. Bradbury (1952) 2 All E.R. 76. 155. See, e.g., R. v. Electricity Commissioners (1924) 1 K.B. 171. 156. See, e.g., Pride of Derby and Derbyshire Anqling Association Ltd. v. British Celanese Ltd. (1953) Ch. 149. 157. See, e.g., R. v. University of Cambridge (1723) 1 Str. 557. 158. On the rarity of the use of mandatory injunctions in public law, see Wade H.W.R., 1977. Administrative law, 4th ed. p. 491. 159. See, e.g., R. v. Hendon R.D.C. ex p. Chorley (1933) 2 K.R. 696. 160. See, e.g., Vine v. National Dock Labour Roard (1957) A.C. 488. 161. Cf. Punton v. Ministry of Pensions and National Insurance (No. 2) (1964) 1 All E.R. 448. 162. See, e.g., Davey v. Harrow Corporation (1958) 1 Q.B. 60. 163. See., e.g., R. v. Criminal Injuries Compensation Roard ex p. Lain (1967) 2 Q.B. 864. 164. Cf. Re Arjoon, unreported, Trinidad and Tobaqo No. 5 of 1976. 165. Contrast R. v. Hendon R.D.C. exp. Chorley (1933) 2 K.R. 606 with Gregory v. London Borough of Camden (1966) 2 All E.R. 196. 166. See Wade H.W.R., op. cit. p. 530-537. 167. See, e.g., Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) A.C. 260. 168. See, e.g., the Barbados case of Taylor v. A-G (1972) 20 W.I.R. 24. 169. (1978) 2 All E.R. 670. 170. See. e.a.. R. v. Inland Revenue Commissioners. re Nathan (1884) 12 Q.B.D. '461. 171. Guvana Constitution. arts. 52-56. See also the Ombudsman Act (~"~anacap. 19:04).' 172. Trinidad and Tobago Constitution, sections 91-98. 173. Ombudsman Act 1978 (Jamaica 1978-23). 174. Ombudsman Act (Guyana cap. 19:04), section 13 and Schedule. 175. Guyana Constitution, art. 53(1) and (2)(a); Trinidad and Tobaqo Constitution, section 93(1) and (2)(a). 176. See above, ministerial control. 177. See Wade H.W.R., op. cit. pp. 12-16. 178. A recent attempt by the English Court of Appeal to extend the common law in a direction which would, arguably, have qiven rise to a general actio popularis has been squashed by the House of Lords: Gouriet v. Union of Post Office Workers (1977) 1 All E.R. 696, reversed by the House of Lords (1977) 3 All E.R. 70. 179. See Wade H.W.R. op. cit. pp. 557-558; The Law Commission Report on Remedies in Administrat~veLaw, Cmnd. 6407 (1976). REVIEW OF THE LAW AND PRACTICE OF PUBLIC CORPORATIONS IN GUYANA

A.A. Alexander

Introduction

Guyana has had a Public Corporations Ordinance, as it was then called, since 1962 (1). Prior to passing this ordinance however the government (2) was already engaged in runninq activities which may he described as public utilities (3), or as social or essential services. These endeavours included providing electricity and water, marketinq rice, other agricultural crops and livestock, and providing social services, such as medical care and free primary school education (4). Governments have traditionally supplied and maintained such services and the government had inherited these activities. That the introduction of the Public Corporations Ordinance was not greeted with enthusiasm was a direct result of Guyana's political history from 1953 (5). The vigorous opposition to the ordinance was not founded solely on the government's political philosophy, but also on the widespread belief that the ruling party, the Peoples' Proqressive Party, had come to power as a result of the party's ethnic sympathies. Oppo- sition to the ordinance was based on the feeling that the legislation was laying a framework within which property, especially economically viahle concerns, could be confiscated under then undetermined terms and rules. The legislation was not viewed in a 'welfare-state' context because it was believed that the government intended to limit its powers to those undertakings and services which, by their very nature, serve or service a large and significant sector of the population and which cannot or might not be economically viable concerns. It is clear that the government made a conscious decision to actively engage in the man- agement of the country's economic life and that the passing of the ordinance was intended to facilitate that policy. Because of the opposition to the introduction of the Public Corporations Bill (6) in the Senate (7) and in the House of Assembly, it is surprising that the succeeding government did not repeal that par- ticular legislative enactment or restrict its scope. Instead the scope of the measure was greatly extended (8). One probahle reason was the philosophy of the Peoples National Conqress (PNC) party, a socialist party whose goal was the establishment of a socialist state in Guyana. The PNC has often emphasised that the party is paramount to the gov- ernment. The party's position is siqnificant in relation to the leqal structure of public corporations. The legislative trend has been to concentrate power over, and ultimate control of public corporations in the hands of the prime minister. The germ of the principle of centralisation of power is found in Burnham's statement that the public service, many of whose members were not party members, had at least contractual obliqations to carry out the day to day administration of the country, subject to policy directions from the political government, i.e., the cabinet (9). This position shows no drastic departure from capitalist norms of qovernment when dealing with public corporations or utilities, except that it equates political government with the cabinet. However, whether this was inten- tional or not, Rurnham reaffirmed the position when he later stated that the PNC could not be accountable to the masses, the people, and the nation without exercising ultimate control over the acts of its aqents. Although his statements addressed the functions of public servants, the functions of public corporations personnel must be included hy virtue of their status and political standing which is almost the same as that of public servants. When reviewing the law and practice of public corporations in Guyana, a basic political thread can be detected. This was the fear that political patronage was and would continue to be the order of the day, not only with respect to appointments at the executive and admin- istrative level, but also to the appointment of the boards, auditors and even workers' representatives. This fear was founded on the alleqed unconstitutional means used by the then ruling party to prepetuate it- self in power (10) and statements such as those made by Rurnham. This review however will only look at the structure as it existed in 1978 and examine it in terms of the conceptual framework outlined in the next section.

The Philosophy of the Public Corporation in Guyana

The scope, purpose and economic viability of a public corporation depends on the philosophy underlying its establishment. This philos- ophy which can be social, economic or political, may vary from state to state, as well as within a state. An examination of the structure and operations of a public corporation or group of corporations must be done in relation to the goals for which they have been established. In Guyana one Public Corporations Act (11) allows establishment or liqui- dation of a public corporation. The philosophy underlyinq this act can be gathered from the act itself, parliamentary debates (12) durinq its passage, and extra-parliamentary speeches of the government promul- gating it. Because the establishment of a specific public corporation in Guyana does not entail a detailed memorandum or articles of association as for a public company under the Companies Act (131, but may he done by an order of the minister responsible for public corporations, a common philosophy underlies all public corporations. In Guyana in the 1970s three political parties were represented in the unicameral legislature which had no nominated members. Of these, two major parties, the PNC and the Peoples Proqressive Party (PPP), were socialist parties. The PPP was a Marxist-Leninist party while the PNC's philosophy was based on 'democratic socialism' and 'cooperative socialism'. The third party, which was insignificant in numbers and effect, was 'conservative'. The ruling Peoples National Congress Party had, throuqh its two-thirds parliamentary majority, put into effect its objectives of owning and controlling on behalf of the people of Guyana some RO per- cent of the economy, including the key industries of sugar and bauxite. In addition, the constitution had been amended to facilitate acquisition of private property for public use (14). Although the gov- ernment had declared that it had no intention of absorbing the private sector of the economy, the private sector operated within the context of the socialist thrust (15). The government's philosophy therefore appeared to be based on the paramountcy of the people (16), control of the commanding heights of the economy on behalf of the people (17), acquisition of private property where it was in the interest of the people so to do, and the operation of a private sector economy within strict limits (18). The philosophy, however, had some inconsistencies or even con- tradictions. The call for paramountcy of the party presupposes that the will of the party is either superior to, or coexistent with that of the people. Emphasis was put on the exercise of ultimate control by the party over its agents and monitoring of qovernment action and policy by the party through its nongovernmental agencies and members, to ensure consistency between declaration and performance and hetween strategy and tactics. Emphasis shifted from the 'people' to the 'party' leaving the impression that government activity, of which the establish- ment and running of public corporations was a part, was mainly for the benefit of the party and not for the people of Guyana as a whole. The law and politics of public corporations will be reviewed here in terms of the likelihood of autonomy within corporations, the possibility of political balance within the structure, public participation in the running of corporations, government accountability at parliamentary and other levels, and general efficiency of the corporations. The Public Corporations Act (19) does not generally lend itself to the application of common law rules because of its background although it is analoqous to the Companies Act, because litigation under it or against corporations established by it, particularly in the area of tort, has been virtually nonexistent.

The Public Corporations Ordinance

The forerunner of the Public Corporations Act was the Public Corporations Ordinance of 1962 (20). The main difference between the act (21) and the ordinance was that the act put control of, and power to create public corporations in the hands of a minister, while the ordinance vested such power in the Council of Ministers (i.e. cabinet or its members). The rationale for the introduction of the ordinance (22) was that public corporations were created from time to time, and on each occasion an ordinance had to be enacted to provide for qrantinq legal personality and the exercise of the particular functions and duties for which the corporation was created (23). The object was to provide a general law relating to public corporations and allow a corporation to be established under provisions of the law by order of the Council of Ministers, at which time the provisions of the ordinance would apply to the new corporation. The legislation would enable more active participation hy the government in the life of the community by providing machinery to sup- plement existing activity. Provision was made for the Council of Minis- ters to give directions to a corporation and was intended to ensure that all corporations would function with due regard to the interests of the community of which they formed a part in accordance with sound economic planning. In the senate debate, Senator Hubbard stated that the purposes for which corporations may he established would not he restricted, but in each case ultimate policy control of a corporation would be vested in the Council of Ministers. In the actual working of a corporation the executive authority would be a board constituted under the provisions of the ordinance. The legislation was intended to enable existing corporations to be reconstituted under it, provide for the merger of corporations, and ensure uniformity in the law relatinq to public corporations that would make the principles applicable to them easy to learn and apply. It was also designed to ensure that the exper- ience gained in the service of one corporation would be useful in the service of another. Public corporations established under the ordinance would be subject to the law in the same manner as other corporations (24) but special provision was made for the legislature to approve exemption for the corporation from payments of stamp duty and income tax. Power was vested in the corporations to enable them to conduct their business efficiently, and general power to make regulations was vested in the Council of Ministers to enable the provisions of the ordinance itself to be carried out. The objects of the bill explain the intentions of government with respect to the public corporations. The objects and reasons are not in themselves law, but are by law available for interpretinq the legislation to which they refer, and therefore from this point of view are informa- tive and instructive. The government at the time intended to take a more active part in the life of the community, but whether that life was political, social, economic or otherwise was not spelled out. The Council of Ministers, instead of parliament, was to be the judge of the interest of the community (24), especially with reqard to economic planning. The main objection to creating entities as important to the economic life of the country as a whole on an apparently ad hoc basis, is that their establishment can be disruptive of fiscal and other economic planning. Within the context of limited financial resources the establishment of new and unplanned entities may mean that funds ear- marked for an equally or more important project will be used. When such sweeping and apparently arbitrary power rests with a council of ministers there is a suspicion, within the context of Guyanese politics, of political manoeuvring tailored to the whims of a council of ministers or other agency rather than the application of sound economic and common-sense principles. As no national economic policy was clearly enunciated, the objects and reasons for the bill must be considered as part of an unstated national economic policy. Where a public corpora- tion is established by an order of a council of ministers the aspects of the national economic policy that the corporation is intended to serve or the objects it is to accomplish must be determined. If these points are not debated in parliament then it can be concluded that the council of ministers has appropriated to itself the functions of parliament. It can be contended that expediency and efficiency at times necessitate resort- ing to the device of by-passing parliamentary debate, but if parliament is representative of the will of the people, then that body should at least be involved in matters of national economic planning. The third proposition was that the day to day working of cor- porations established under the ordinance would be left to a board with executive authority. No clear indication of the composition of the board was given, nor was executive authority defined. From a legal point of view it appears that the board would only have residual authority, in that policy would be predetermined by the Council of Ministers whose policy decisions and decisions on employment of certain personnel had to be implemented. It is almost a legal axiom that where general powers are given to one body and residual powers to another there is bound to be conflict (25), and unless there is an impartial third body to resolve such conflict they will encroach, sometimes deliberately, on the powers of each other. It is apparent that some personnel appointed to positions in public corporations should be conversant with the policies of government and prepared to carry them out, but the ability to manage a large corpora- tion should be taken into account. The statement that experience gained in the service of one corporation would be useful in the service of another implied the pace of development of public corporations was to be a measured one, so that expertise would be developed over time. Despite the obvious merits of this approach, it is debatable whether its implementation could have suited the political philosophy of the government of the time, or later governments, especially as corporations were established to supplement existing activity. Finally, whether public corporations established under the ordi- nance would be subject to law in the same manner as other corporations is questionable. The ordinance itself does not provide for this. public corporations were to be established by order of the Council of Ministers subject to the provisions of the ordinance. The Companies Ordinance (26) could therefore not apply to corporations unless legislation so provided, either under a public corporation act or through the order of the Council of Ministers. If an order of the Council of Ministers establishing a public corporation provided for the incorporation of the Companies Ordinance, that part of the order would have been ultra vires the power of the Council of Ministers because the exercise of this power was limited by the enabling legislation, the Public Corporations Ordinance, which had no provisions for incorporating provisions of the Companies Ordinance either by reference or implication. The Public Corporations Ordinance however provided for public corporations enter- ing into contracts, the validity of which depended on strict adherence to specific procedures laid down in the ordinance. From the provisions an action for breach of contract, in a proper case, can be sustained against a corporation. It is doubtful, however, whether a personal action for breach of contract for wrongful dismissal or example would lie against a corporation as well as one would for a tort committed by the corporation. It is a long established law that a corporation established under legislative enactments such as the Companies Act may sue and be sued in contract and tort in its own capacity. However, the state enjoys immunity from this unless there is a law that gives the subject the right to sue. Senator Hubbard's statement was optimistic rather than legal (27). During the debate on the bill Senator Tasker in opposing it (28), said that it had no flexibility because too much was left to the Council of Ministers in the day to day running of the affairs of the corpora- tions, and that the removal from office at the pleasure of the Council of Ministers was a provision which might have the effect of deterring per- sons of ability from accepting appointments to offices in the corpora- tions. He argued further that the provision for appointments to posts within a certain salary scale where the approval of the minister was a prerequisite had built into it the qerm of political patronage. The three year tenure of office of board members was also criticised. Hubbard failed to deal with criticisms of the possibility of political patronage or the other issues raised by Tasker. Clarification of the issues would have established the underlyinq motives for introducinq the measure, but Hubbard confined himself to rebuttinq the suqqestion made by Tasker that the intended three year board appointments were too short, by pointing out that the recommended period was one year longer than the customary periods of appointments to similar posts, and that they could be subject to renewal. The bill did not have a welcome passage in the senate. The proponents of the measure did not give parliament any opinion on its economic or social benefits to the country. Their main concern centred on the political expediency and mechanisms for setting up public corpor- ations. Opponents concentrated on its method of operation rather than the practical effects it was likely to have on the economic well-being of the country. Lack of debate on the economic and social aspects of the bill may have been because the passage through its parliamentary stages was inevitable, and therefore opponents could only hope for improvement in the structure, while the government may have been con- cerned, primarily, in setting up entities to supplement existinq activity. At the next stage of its passage, debate on the hill was led by Premier Jagan on behalf of the government. In his openinq remarks he pointed out the principle and procedure of the bill which was (29): that the measure was intended to streamline management and incorpora- tion of existing corporations and facilitate settinq up other organisa- tions; that there was a need for an overall Public Corporations Act, so that parliament would not have to debate the same thinq over and over; that the government intended to establish industrial enterprises side by side with private enterprise; and that Trinidad-Tobago and Jamaica had established industrial development corporations free from qovernment control. If Jagan's declarations are taken literally his reference to industrial enterprises must have excluded the major sugar and bauxite industries (30) and meant that the private industries with which the government intended to compete were mainly owned and operated by Guyanese. The government may have been trying to avoid direct nationalisation of local industrial enterprises, a measure that would have been decidedly unpopular, but hoping to achieve nationalisation by the back door. In 'back door nationalisation' government entities are set up ostensibly in competition with private enterprises, but are given more favourable operating conditions. For example, income and corporation tax exemptions and duty free import licenses are enjoyed by qovernment enterprises, and they can therefore adopt pricing policies for their goods and services that private enterprises are unable to compete with. The private enterprises are thus forced out of business because they cannot remain economically viable. Although this approach does have its merits in certain circumstances its object must be exclusively for the benefit of the local community. Although Jagan pointed out that Trinidad-Tobago and Jamaica had set up industrial development corpora- tions, and inferred that what was economically good for those territories was automatically good for Guyana, he failed to point out that the poli- tical philosophies of the two territories were different from those of Guyana (31). He also did not mention that neither Jamaica nor Trinidad-Tobago had an umbrella public corporations act, nor that their industrial development corporations were incorporated for different pur- poses from those in the proposed Guyana legislation. If Jaqan meant to indicate that under the Guyana Public Corporations Act any and all entities that were established would be free from government control then he did not make his point clear, because he did not refer to the structure and aims of those corporations which would have allowed com- parisons to be made. According to Jagan, the purpose of the bill was to enable the government to establish government enterprises, industrial projects, and factories, which were long overdue in British Guyana. He also pointed out that the government would have to go from time to time to parliament to seek financial support for any new venture that it was proposing, thus preserving the mechanism for legislative review. This satisfied an underlying prerequisite of parliamentary control over the establishment of public corporations, but it did not qo far enouqh in giving parliament the right to annual or periodic review of the opera- tions of the corporations. Jagan envisaged settinq up corporations in fields not covered by private enterprise which could have been a state- ment of a new government economic policy. If it was, the vehicle used to launch it was badly chosen. A public corporations bill or act is not the appropriate umbrella under which any qovernment should place a new economic policy. The measure was opposed, as it had been in the senate. Carter feared that private property could be vested in a corporation without the necessity for transporting (32) such property (33, 34), and felt that legislation on this point should be clear. However the section of the bill to which he referred clearly stated that only where the property which was to be taken over by a corporation was vested in the Crown or Colony was there no need for having the property transferred by way of transport. Carter also attacked clause 48 which attached criminal liability for writing or publishing false statements about a corporation, or member of its board or committee, concerning the business of the corporation. The clause proposed to oust the common law rules of libel and slander and replace them with criminal liability (35). This clause was deleted and replaced. Burnham pointed out that the responsibilities of the ministers was not clear, in that the council of ministers was responsible for the establishment of public corporations but a minister was responsible for appointing members of the corporation. It appeared that the legislation was intended to pass over the power of the legislature to the council of ministers, and some minister, unspecified and unidentifiable, which gave scope for employees of the corporations to be hand picked. He also pointed out that the bill gave the council of ministers power to give directions on the day-to-day running of corporations in matters relating to policy and operations, but that the essential thing about public corporations was that they should be independent of qovernment and political influence. The bill also did not explain how the ultra vires rule was to apply. Burnham suggested that the legislature should examine the powers of each corporation. Jagan dealt with the accusations of unspecified and unidentifiable ministers by arguing that as the bill was intended to set up corpora- tions dealing with different aspects of economic life, then the tasks must necessarily fall on different ministers who certainly could not have been identified or were not identifiable, at that point of time. From this reply it appears that the government intended to use public corporations as the vehicle for changing the economic life of the community and that the legal framework for the creation of a large num- ber of enterprises was being laid. Jacob and Hubbard appear to differ on the time frame in which these corporations were to be established. Hubbard spoke of obtaining (local) expertise through experience, a process that takes time, while Jacob gave the impression that time was of the essence in creating a large number of enterprises. Conclusion

It appears from the debate that all parties agreed on the need for public corporations, and that the medium for their creation should be a public corporations act. Differences centred around the power of minis- ters, either individually or as a council, the independence of public corporations from government and political influence, the lack of legal control by the ordinary courts through the ultra vires rule, and the need for legislative control over the powers of corporations. Any clear and direct argument on the political, economic or social role that these entities were expected to play in the life of the community was absent from the debate. These principle8 may be obtained by examininq later legislation on public corporations.

The Public Corporatio~(Amendment) Act 1971

The purpose of the Public Corporations (Amendment) Act (36) was to establish the Guyana State Corporation (Guystac) and thus brinq state-owned corporations and enterprise8 in which the state had major- ity ownership under the control of a single entity. Debate on the bill in the National Aeeembly gives information on why the government con- sidered the establishment of Guystac necessary, and some information on whether existing corporations were operating efficiently, economically and in the interest of the people as a whole.

The Introduction of the Amendment

Burnham, the Prime Minister at the time, opened the debate by noting that a Ministry of Public Corporations had been established on 1 January 1971 because the government had recognised that entering into business would require reorganisation of some section8 of the public service, including the structure of the public corporations that were operating under their own ordinances and acts, or under the Public Corporatione Ordinance, 1962. Corporations that the government either wholly owned or in which it had a majority share needed coordination, and streamlining of their services, methods of operation, staffing pro- cedures and staff remuneration. This would be accomplished through the Ministry of Public Corporatione. The proposed legielation was the result of studies and recom- mendations by the Ministry of Public Corporations. In addition to con- trolling and coordinating the functions of the various enterprises, Guystac would be responeible for holding government equity in them. Burnham pointed out that the boards of public corporations appointed under the 1962 ordinance were not expert or professional boards, and as they were part time were not in a poeition to exercise real and firm supervisory powers. Other problems with existing public enterprises included remuneration for employees, and the corporations lack of inter- eet in earning surpluses. The basic difference between surpluses of privately-owned and publicly-owned corporations was the method of dis- posal. Publicly-owned corporations' surpluses should be used for the nation's benefit and unless a particular service was established specif - ically to bring a service to the community and not to make a profit, it was the duty of public corporations to work effectively and efficiently to ensure surpluses for use in the nation's interest. The proposed structure of Guystac represented a clear attempt to have public corporations run by persons with the necessary back- ground, training and experience, and unequivocally placed responsibil- ity in the hand of Guystac. Rurnham said that he found it difficult to believe that there was anyone who would prefer to have political minis- ters instead of a holding corporation makinq policy decisions for, and giving directions to public corporations. From Burnham's statements it appears that existinq public cor- porations were uncoordinated, the services they offered the public were defective in some way, their methods of operation fell below the expec- tation of the government, and there were problems because of salary discrepancies. The opposition seemed to concur with Burnham's views. Some examples of the poor performances of the public corporations would have been helpful in making a case for reorganising them. Although there was a need for accountability by these corporations Burnham gave no clear pronouncement on whether this accountability was to be public accountability, accountability to the Minister of Public Corporations, the minister responsible for Guystac itself, or a combina- tion of these. Rurnham also felt that internal coordination, and coor- dination between public corporations could be achieved by the corpora- tions having a recognisable rationale, which included making sur- pluses. However he recognised that some corporations established to provide services to the community could not make profits. The prime minister proposed to reorganise and streamline the public corporations through the Ministry of Public Corporations and Guystac. The prime minister was also the Minister of Public Corporations and president of Guystac. For the former a permanent secretary was the second-in-command, and for the latter there was provision for a vice- president between the prime minister and permanent secretary. Although it is not stated in either the amendment or the act that the vice-president of Guystac must be a minister, in practice the vice- president has been given a ministerial post with cabinet rank (37), thereby giving public corporations two voices in the National Assembly. This structure seems ideal for fosterinq political patronaqe and partisan politics as Guystac had not been given a leqal framework which would make it independent of partisan political influence. Although the boards of directors of the public corporations were sup- posed to be expert or professional, consisting of persons of proven abilities who could bring to the boards the real and firm supervisory powers that were lacking in their predecessors, it is questionable whether the legal environment was such that they could have exercised real and firm supervisory powers as independent entities.

The Opposition's Point of View

Reasons for opposing the bill varied. Some members opposed the measure in principle but appeared to be concerned with its effect on a specific existing corporation rather than on its overall impact. I-all considered the whole concept of the bill wrong and thought it was designed to create a one-man dictatorship in Guyana. I-all also queried the extent of proposed worker participation and the fact that some ministers would be powerless to deal with some corporations falling under their ministry. La11 did not indicate where the amendment took from ministers the responsibility of government, even though under it they could be relieved of the responsibility of a corporation which by definition or activities fell within their ministry. He also failed to show how the problems of specific corporations he referred to could have been solved by retaining the status quo. Wilson agreed on the need for coordinatinq the activities and functioning of the various corporations but queried the necessity for creating such stupendous machinery for doing so. He arqued that coordination should be exercised by general quidelines promulgated by the cabinet and passed down to the various ministers responsible for the corporations. This would make for greater elasticity and allow adaptation of the guidelines to the peculiar circumstances of the various corporations. He believed overlapping would cause confusion and would lead to a lack of sense of responsibility somewhere and that Guystac could conveniently deny responsibility if anything went wronq, while the ordinary corporations could disclaim responsibility by simply show- ing that Guystac was the accountable body. Wilson felt that a situation that breeds lack of responsibility must lead to chaos and inefficiency, and ultimately to great loss to the nation. He contended that coordina- tion was being confused with uniformity and would produce disastrous results as the corporations needed flexibility to adapt to situations peculiar to the type of service they provided. Despite Wilson's comments it is difficult to believe that the cabinet had not been giving broad guidelines to the corporations throuqh ministers although they probably did need coordination. Wilson's point on uniformity leading to confusion appears to have been prophetic, as in 1976 a Commission of Enquiry was set up to examine some corpora- tions. Another opposition member, Persaud, although having no objection to coordinating and streamlining the various bodies under government control because public corporations in Guyana had a history of misman- agement, squandermania, incompetence, discrimination and fraud, felt that many of the problems resulted from mismanagement and political patronage. Karran, the deputy leader of the opposition, contended that powers were being taken from ministers and given to experts, and that the government was probably seeking to destroy private enterprise hy being closer to it. Karran also observed that many of the public cor- porations had been established to help the working classes or aid in the development of the country, not to make profits, and said it appeared as though the government had forgotten the original intent in setting up the corporations. He also argued that corporations should he placed under the relevant ministries so that the government's over-all policies could be established, and felt that there was too much political interference in the running of the corporations. By his early comments Karran indicated that he was qoinq to show that the proposals in the bill were not an improvement on the current situation. He could have done this by showing that under the PPP pub- lic corporations were functioning within the overall policy laid down by the then government, and that the policy of ministerial control was effective, thereby satisfying the original intention for settinq up public corporations. Instead of doing this he focused attention on the finan- cial behaviour of corporations, the proposal for centralisation, droppinq of subsidies, and political patronage. From this Karran seems to have felt that by retaining the old structure and subsidies, and eliminatinq political interference, public corporations could be run efficiently. However there was general agreement that public corporations were not being run efficiently and effectively under the existinq system. Karran's contention that public corporations had been established as non-profit entities to serve the good of the working class does not appear in the debate on the 1962 measure and this must therefore have been a cabinet policy decision. Chandisingh pointed out that if the Prime Minister's arquments were for tightening of controls etc. of the public corporations, the bill was ill-conceived, but if the provisions of the hill had other implications it was more open to question and challenge. He suqgested that the government had been proposing different mechanisms from time to time to try to have better control over public corporations and to extricate itself from some of the mounting difficulties which it had been facinq. The proposed structure would not solve the problems- but further aggravate the seriousness of the existing difficulties. Chandisinqh felt that government was attempting to centralise control at the top and that one of the main problems faced by Guyana was that of tighteninq con- trol at the top without mass involvement and participation below. He pointed out that the concept of worker participation on the boards of the corporations was not the answer but what was needed was an exten- sion of democracy at all levels which would provide the basis for elimi- nating some of the problems. He also pointed out that the PPP was not against experts, but that experts divorced from the realities of the day and who were not in touch with the people, could not introduce the changes necessary to propel the country forward. Chandisinqh felt that if passage of the legislation resulted in reducing the number of laymen or removing laymen from committees and boards there would be even greater difficulties. Although agreeing on the need for tiqhter control of corporations Chandisingh did not proffer any alternate measures to those in the bill, nor did he address the question of how Guystac should he structured to achieve the objectives of greater people and worker participation, and how the right type of experts should be chosen to satisfy his criteria. Although Sutton was a member of the opposition he voted in favour of the bill, arguing that the opposition in a country like Guyana should endeavour to see that the government develops, or propounds as sound a policy as possible and ensure that the measures the qovernment proposes do, in fact, benefit the people. He commended the Prime Minister's intention of making every effort to see that corporations, instead of being areas in which money was wasted, were controlled and developed to ensure that surpluses arose for the benefit of the country as a whole. He reminded the Prime Minister of remarks made in the debate on nationalising the Bauxite Company (38), where the Prime Minister had said the opposition would be involved, and that if they could produce the necessary talent would be given an opportunity to have representation on the boards and committees. He then expressed the hope that a system could be worked out as a result of Guystac whereby persons proposed by the opposition could be appointed on boards of corporations, and noted that if this was done accusations that appointments were made purely on the basis of political patronaqe would be far more difficult to justify. Sutton believed control of corporations by specific ministers to be arrangements of convenience only, as cabinet framed broad policy. Although supporting the bill, Sutton's main concern was the probable composition of the boards, in that provision was not made for opposition members to be included. He did not indicate however whether he considered that such right of inclusion ought to be a leqal right or one of principle only. In the debate on the nationalisation of Guybau a declaration of principle to include opposition members on the board had been given but the promise had not been fulfilled. It is therefore difficult to understand why Sutton or other members of the opposition did not propose that such a right be made one of the provi- sions of the bill. In his closing remarks the Prime Minister said that there appeared to be general agreement that a certain measure of coordination was necessary, and that some organisation must be responsible for estab- lishing personnel criteria, but that no arqument aqainst Guystac had been put forward. He claimed that Guystac would not be used to strip ministers of their powers, and reiterated that Guystac would be the means of coordinating the functions of public corporations. Burnham also rebutted accusations that he intended to assume all public corporation powers that were in the hands of ministers. He pointed out that in the proposed structure of Guystac there was provi- sion for five laymen, and in other public corporations three laymen and a workers' representative. He also stated that he would like to involve the opposition on boards of corporations, but if this was a qenuine desire, provisions for opposition participation should have been included in the legislation.

The Structure of the Guyana State Corporation Before 1976

The Public Corporations Ordinance and the Public Corporations (Amendment) Act, 1971 formed the law relating to public corporations until consolidated into the Public Corporations Act (39). The consoli- dating act provided for the continuance of Guystac as established under the amendment. Under section 3 Guystac was described as a corporate body with its controlling personnel comprisinq the president, who would also be the minister responsible for Guystac, the vice-president, the chief executive officers of other public corporations, representatives of other corporate bodies in which the state had a controlling interest and which fell under the control and supervision of Guystac, and not more than five other persons appointed by the Prime Minister. The president of Guystac was the prime minister (40) who under the act (41) appointed the vice-president from among persons who appeared to be qualified in agriculture, industry, trade, commerce, banking, finance, science, education, social welfare or administration. In practice the vice-president was responsible for the day to day affairs of Guystac. It is not clear from the legislation whether the appointee as vice-president of Guystsc had to be academically qualified in any of the listed categories, but the use of 'or' meant that a vice-president needed to be qualified in one area only. The sole judge of experience and capacity of the appointee rested with the president of Guystac, or in practical terms the prime minister. Because in practice the vice- president of Guystac was responsible for runninq and coordinatinq a number of public corporations, end because relatively large sums of public funds were involved, parliamentary approval should have been sought on the appointment. Although for practical political reasons the recommendation of the appointee had to come from the government through the minister responsible for public corporations, suitability for the position ought to have been subject to parliamentary debate, scru- tiny and vote. Under section 3(2) the vice president could be removed from office at the pleasure of the prime minister, as could other members of the board appointed by him. No provision was made for qiving reasons for dismissal to anyone, but this should also have been a matter for parlia- ment to consider. Political differences between the president and vice-president on policies relating to running public corporations would be legitimate grounds for dismissal and should not embarrass a govern- ment. Because of the experience the vice president was likely to have if the intent of the sub-section was carried out, the vice president could have been made a cabinet minister because the vice-president could be considered a technocrat, and under the constitution there was provision for technocrats being made ministers though they did not have the right to vote in the House. If the vice president was a cabinet minister and did not concur with cabinet policy decisions on matters not related to Guystac or the public corporations this could provide grounds for dismissal from the post of minister and hence from vice president of Guystac. Under section 5(3) of the act the minister could declare that any public corporation established under section 46 would cease to be a public corporation subject to the supervision and control of the Guyana State Corporation. If this is taken literally it means that the minister alone was empowered to decide when a corporation ceased to fall under the control of Guystac although it does not state that the public cor- poration would cease to be a corporation. By implication this provision appeared to give the power to dissolve a public corporation, hut the exercise of that power could have been limited to removing it from the control of Guystac. Although such a measure is debatable in parlia- ment, in practical terms the government's majority would ensure its passage. Therefore this provision should have included that the deci- sion of the minister to dissolve a public corporation he based on a recommendation from the board of Guystac or on a proposal from the minister agreed to by that board. Section 5(3) could also be used to take a public corporation out of the Guystac group, dissolve it and then reconstruct it as a private company performing public enterprise functions (42). Under section 8 the minister determined the remuneration and allowances, if any, that each member of the corporation, includinq the vice-president, received. The reason for this provision was not clear. As it does not appear that the post of vice-president and other officers of the corporation were intended to be short-term contracts the salaries attached to these posts should have been fixed and published rather than being put at the discretion of the minister. Salary is a factor that can attract competent persons to a job, but secrecy surroundinq the salary can be another attraction. The statutory arranqement leaves room for speculation on political patronage and subservience to the political will of the minister which was also a complaint made by both the PNC and PPP when the ordinance and the amendment were dehated in 1971. The salary provision does not allow the public any say in what the salary of the vice-president of Guystac should be, and also raises the question whether the vice-president receives additional remuneration for being a cabinet minister. Spending of public funds should be qiven full publicity, or, at the very least, information on the salaries of the vice president of Guystac, and indeed of any person employed in a pub- lic corporation or enterprise, should be readily available to the public. Under section 9(1) of the act the minister has the power to give general directions on the policies of the puhlic corporations which must be followed by the corporations, and by section lO(1) the powers under section 9(1) are extended to allow the minister to give specific direc- tions on the disposal of capital assets or the application of the proceeds of such disposals, including paying all or part of the revenues of the corporation into the consolidated fund (43). In commercial terms, Guystac was a holding corporation, whose board, in the world of pri- vate enterprise, would be charged with the responsibility of disposing of the profits made by the undertakings under its control, as well as dealing with the assets of those holdings, Guystac, by virtue of its statute was also charged with certain public functions and responsibil- ities, and debate was centred around the balance between these two sets of responsibilities. The provisions of section 9(1) established a relationship similar to that between a minister and a ministry, which was acceptable. However section lO(1) did not provide for a time scale within which Guystac had to be advised of the intention of the minister to have its capital assets applied in a particular manner or its revenues obtained from the surpluses of other public corporations paid into the consolidated fund. This lack of a time frame element within the provi- sion left Guystac in the position that at any time its revenues or assets could be drastically reduced by ministerial actions. A better arrange- ment would have been for the statute to provide a monetary limit to the assets and revenues that Guystac could hold at any one time, with the excess to become disposable at the direction of the minister in terms expressed in the statute. Resides creating certainty, this arranqement would have left Guystac in the position of being able to plan the dis- posal of its assets and revenue, especially for usinq them to benefit any or all of its holdings. This argument appears to be reinforced by section 9(2) of the act which stated that the corporation must provide facilities to the minister to help verify information furnished. Even though this section did not declare on whose initiative the request for furnishing the information would rest, it made provision for the corporation to furnish data on which to base general policy and specific directions. However it did not give clear guidelines on disposal of the corporation's assets or the amount of payments that could be made to the consolidated fund. The activities and expansion of public corporations could therefore be cur- tailed by applying section 10(1) without the agreement or decision of the board. Though the vice-president of Guystac could be a minister, if the decision to dispose of Guystac's assets was a cabinet one, the vice president's vote would hardly be a deciding factor. As the minister was not compelled to follow the logical course dictated by information supplied, there should have been some method of informing the public on the bases on which policy decisions on public corporations were made. Even where information was covered by the Official Secrets Act discussions could still take place between the prime minister and the leader of the opposition. The corporation had to have the approval of the minister to borrow money and to invest in and sell securities. lJnder section 14(1) the corporation had to submit to the minister a report or audited accounts of the preceding calendar year not later than six months after the end of each calendar year. The Prime Minister said that the report should be printed and, with the auditor's report, be laid before the National Assembly, and proposed that if the provision was adopted by the House it should be firmly insisted on. He pointed out that for the parent corporation to submit its report within six months of the end of the year covered by that report its subsidiaries must do the same. This provision would avoid any suspicion that the accounts of corporations laid before the House would be 'doctored' to achieve political ends, if this were a mutine practice. The legislation, however, raised ques- tions. The Prime Minister laid seeds of doubt when he stated that the provision should be firmly insisted on. Why would a provision of such vital importance be left to chance for its execution? A penalty clause giving the House the right of denying funds being disbursed to Guystac or any other corporation under its control, either by parlia- ment or by Guystac itself in the case of its so-called subsidiaries, shollld have been inserted, rather than hoping that the provision would be insisted upon. The provision that Guystac must keep accounts to the satisfaction of the minister and that the accounts be audited by an auditor appointed by the minister was vigorously opposed. Persaud felt that public accounts and public finance should be protected and be open to the best of scrutiny and examination which is why the opposition tabled a motion asking that the Director of Audit be empowered to audit the accounts of all public corporations. Under Article 116 of the constitu- tion the Director of Audit has the authority to audit without any act of interference and must not be subjected to any political influence or pressure. Persaud therefore felt it was wrong to ask a minister to appoint the auditor to audit corporations directly under that minister's jurisdiction. Karran also criticised the proposal by statinq that the Director of Audit was virtually barred from doing any audit of the pub- lic corporations and outlined his concerns about audits done outside the department of the Director of Audit. Sutton also voiced concern about the audit clause by pointing out that the minister would be in the difficult position of having to appoint an auditor who would have to report on the implementation of policy set by the minister. The auditor may feel under an obligation, and there- fore inhibited, if reports were likely to be considered adverse to the policies or intention of the minister. As the Director of Audit was protected under the constitution and could not be penalised by making an adverse report on a corporation Sutton urqed that the Director of Audit should audit the accounts of corporations, as was done in other government departments. The prime minister in reply denounced the objections of the opposition and added that the clause was widely phrased because the Director of Audit's establishment might not be large enough to carry out commercial audits, and further that the clause did not preclude appointing the Director of Audit. The proposals for amendment were turned down. The arguments of the opposition on the clause did not appear to have been well thought out or penetrative enough. The Department of Audit was understaffed, which both the opposition and indirectly, the government admitted. Guystac was also not a civil service department, therefore there was no compelling reason for the Director of Audit to have been appointed auditor of its accounts or the accounts of any of the so called subsidiaries. There was in addition a shortaqe of quali- fied commercial auditors in the country. For these reasons it seems foolhardy to suggest, let alone insist, that the Director of Audit per- form the functions of auditor to the corporations. Karran's suqgestion that 'outside' auditors be appointed is attractive though it needs elab- oration and explanation. However the opposition arquments that Guystac and the auditor should be independent of the minister were turned down. To avoid this type of criticism by the opposition the government could have established a director of audit for public corporations and public enterprises which, like the position of the Director of Audit, could have been made a constitutional position with the necessary guar- antees of independence. Establishing such an office would not in itself have solved the problem of shortage of audit personnel but this problem could have been dealt with at two levels, by making legislative provi- sion permitting a director of audit of public corporations and public enterprises to farm out the accounts of public corporations etc. to pri- vate firms of Guyanese or non-Guyanese auditors, and by training personnel to audit. Under these circumstances there would have been an independent auditor statutorily responsible for the audit of accounts of the public corporations. Though the Prime Minister's justification for the provision of an appointed auditor seemed to rest on the integrity of the appointee, and that the appointing minister was concerned with policy and the auditor with accounts, his strongest argument was that the accounts to be audited were commercial accounts, and therefore different from qovern- ment service audits. Under section 5 of the act Guystac was empowered to exercise supervision and control over the corporations specified in section 46. Sub-section 5(l)(c) empowered Guystac to stimulate and facilitate economic development in Guyana by means that the corporation consid- ered to be requisite, advantageous or convenient for that purpose. This gave the corporation the right to make policy of a general and far-reaching nature, limited by the dictates of the president and vice- president, (where the latter was a cabinet minister) who would be in a position to advise the corporation on government policy on economic development in Guyana. However, this provision was stated in broad terms that appeared to give Guystac the power to make decisions on matters that should have fallen exclusively within the purview of the cabinet. If a project ostensibly aimed at stimulating and facilitatinq economic development in Guyana failed there would be problems in assigning responsibility for failure. Failure could be attributed to Guystac, the minister responsible for Guystac, or the vice-president of Guystac where he was a minister, or the qovernment. The sub-section was not helpful in giving specific guidance on this type of problem because Guystac could argue that a project was a cabinet policy direc- tion, while cabinet could argue that Guystac, as an entity, made a decision under section 5(1) of the act. Subsection 5(l)(d) assigns to the Guyana State Corporation the function of undertaking activities that appear to the corporation to be requisite, advantageous or convenient for, or in connection with the discharge and exercise of its functions. Private companies, public companies, state-owned corporations or state-controlled entities within a purely capitalist economy find it necessary to have in their memorandd of association clauses drafted in a manner similar to section 5(1), but it is questionable if so wide a clause had any application to a public cor- poration within the context of Guyana's economy, either then or now (44). In effect, there was no legal machinery for limiting or restrain- ing the activities Guystac could enter into as part of its programme. All that was legally required was a decision of the board of directors. Section 4 of the act determined that the permanent secretary to the Ministry of Public Corporations would be secretary to the Guyana State Corporation. The act therefore not only created an interlocking ministry, but also provided for an interlockinq secretary between the Ministry of Public Corporations and Guystac. Ry usinq the constitu- tional provision Guystac could have two ministers, one its president and the other ita vice-president. Section 5(2) empowered Guystac to give general or specific directions to other public corporations or corporate bodies subject to its supervision to secure coordination of functions. Guystac could also give these bodies directions on personnel matters, including conditions of service, finance, manaqement and orqanisation. Where such direc- tions were given the public corporation or other corporate entity con- cerned had to give effect to them, which made the other corporations appear to be puppets with very little autonomy. Other public corporations could be established by order of the minister responsible for Guystac, subject to negative resolution by the National Assembly. The minister could designate the name and style by which the corporation was to be known (45). The order could exclude any of the provisions of the act but had to prescribe the powers, pur- poses and functions of the corporation. From these provisions it is clear that the minister, and not ~uystac, decided the establishment, functions and powers of public corporations (46). It may be argued that the minister was the vehicle through which the House was given an opportunity of debatinq the creation of new public corporations, but if this was so there appears to be no reason why Guystac had been given co-extensive powers under subsection 5(l)(c). This section could be interpreted to mean that Guystac could create new public corporations without parliamentary approval, but if so powers given to Guystac under subsection 5(l)(c) overlapped those conferred on the minister under section 46. The boards of corporations established by Guystac consisted of the vice-president of Guystac as chairman, a general manager, department heads designated by the general manager and approved by Guystac, a representative other than a department head selected by the employees of the corporation, and not more than three persons appointed by the president of Guystac. Because the vice-president of Guystac, for practical reasons, would very rarely be present at board meetings, the operating head of sub- sidiary corporations who was the vice-president of the board, would normally act as the chairman. This raises the question of why the vice-president of Guystac was made chairman of the boards of the sub- sidiary corporations. If it were considered necessary that someone from Guystac should be at board meetings of the other corporations then the most appropriate device would have been to make provision for the vice-president, or his alternate or nominee to be chairman or member of the board. This would have avoided a board decision being vetoed by Guystac by allowing Guystacts point of view to be presented at hoard meetings. Having the general manager in the role of contingency chair- man was probably neither effective nor practical. Having heads of departments as members of the boards allowed for the points of view of the entire orqanisation to be expressed at board meetings if there was good communications down the line. In addition it could have been helpful to management to know how those who imple- mented decisions felt about the decisions, and if the input of depart- ment heads was taken into consideration and responded to, better rela- tions with workers could have resulted. Successful implementation of manaqement decisions is, however, dependent on the attitudes of department heads and their philosophies of management. There are two objections to the provisions made for having department heads as board members. Where numbers preclude automatic representation, it would be better for the heads of depart- ments to elect from among themselves representatives on the boards, and it is not clear why the appointments needed the sanction of Guystac. If the latter was for legal purposes, provisions could have been framed to preclude Guystac from havinq the right of disapprovinq a nomination, or the president could have exempted Guystac from the operation of this provision in the order creating the corporation. Providing for employee representation on the board was a step in the right direction towards greater worker input but, because of differ- ences between the Ministry of Labour and the Trades Union Congress the provision has never been enacted. The provisions for the appoint- ment of lay members were similar to those for the appointment of the vice-president of Guystac. Subsection 16(1) of the act states that the function of a corporation is to stimulate, facilitate and undertake the purposes for which it is established and subsection 16(2) qives it the power to undertake activi- ties that are deemed requisite, advantageous or convenient for or in connection with the discharqe and exercise of its functions, includinq the acquisition of interests in similar undertakinqs. This already extensive power is further extended by subsection 16(2)(b) where the extent to which a corporation may co-operate with other bodies or per- sons to expand its activities is set out in some detail; while section 18 gives the corporations general powers to transact business to make their own operations easier. From a legal standpoint the exact extent of a corporation's powers under these sections of the act is not clear. On the one hand, it appears that under section 16(2) the principle of Re11 Houses 1-td. v. City Wall Properties Ltd. (see ref. 44) applies to the operations of public corporations. On the other hand, this principle appears to be limited by subsection 16(2)(b) to specific activities if the ejusdem generis rule of interpretation is applied (47), yet section 18 appears to extend the powers only to the 'reasonable incidental rule', where activi- ties reasonably incidental to specified objects will be intra vires the corporation (48). When this section of the legislation was drafted three thinqs appear to have been taken into consideration. First, that the corporation should be empowered to carry on any activity not connected directly with its main object or else that the corporation should have maximum flexibility to tailor its activities to fit a political framework; second, that the corporation should be empowered to lend money to promote activities not directly connected with its objects, and third, that the corporation should be able to borrow money as an independent entity. Under subsection 16(2)(a) a requisite, advantageous, or con- venient activity need not be economically profitable and thus could be used as a device to indirectly subsidise other activities. Also, all that was necessary for the corporation to undertake such an activity was a bona fide decision of the board. It is not clear why corporations not involved in financial activities should have been given the power to lend money, or if feasibility studies were required before lending, or if commercial rates and terms applied. It is also not clear whether money borrowed by corporations could be applied for purposes other than the pursuit of their objec- tives. Case law seems to limit such borrowing to objects or activities specified at the time of borrowing (49). These all-embracing powers given to corporations under the act apparently can be limited by Guystac exercising its powers of veto, or by the order establishing the corporation limitinq its activities by excluding the operation of certain provisions of the act. The public as a body is not entitled to shareholder remedies against any corporation because there is no shareholding in these entities, hut individuals will have remedies where they contract independently with corporations. The autonomy of public corporations has been the subject of a great deal of debate. Under section 22(1) of the act the general manaqer of a corporation must be appointed by Guystac and not by the corpora- tion, and is therefore an employee of Guystac. Under case law prin- ciples, the general manager cannot be dismissed by the corporation (50). It has not yet been declared by statute or the courts whether an employee of a state corporation, in the context of Guystac and its sub- sidiary corporations, is a public servant. Although the appointment of a general manager was in no way connected with the public service com- mission, Guystac had interlocking ministerial and personnel relations with the Ministry of Public Corporations. Although the act notes that the holders of certain posts are liable to dismissal at the pleasure of the president of Guystac, it is not con- clusive on whether such persons are public servants even though the president of Guystac is the prime minister. All the act does, in law, is identify who must effect the dismissal, notes that the rules of natural justice may not apply to such a case of dismissal, and identifies the machinery for dismissing persons falling within its ambit. In addition to appointing the general manager of a corporation, Guystac under section 22(2) must approve the corporation's appointment and remuneration of the secretary and other officers and employees as it deems necessary. The rules for governing the corporations business must be approved by Guystac, and by section 26 Guystac may deter- mine the remuneration of each member of a corporation, which must be paid. Further under section 28(2), where a corporation is carryinq out any programme of reorganisation or development work involving sub- stantial outlay on capital account, and dealing with subsidiaries, the general programme must be settled from time to time with Guystac. In addition, a corporation's training, education and research programmes must be within a general programme settled, from time to time, hetween itself and Guystac (51). Although it is understandable that matters fallinq under sections 28(2) and (3) should come under constant scrutiny by Guystac because Guystac should ensure that national policy is adhered to by the corpor- ations, and monitoring can prevent duplication of effort and rationalise programmes, appointments and remuneration of corporation personnel (below some clearly stated, but confined level) should be left to the corporations. Guystac should only be involved in establishinq salary scales although it could provide for special cases that may arise from time to time. Many of the powers given to corporations by the act are exercisable in consultation with Guystac which implies Guystac has the power of veto. Therefore despite the apparently wide ranqing func- tions in which a corporation may engage, its autonomy seems to be greatly restricted by Guystac. Section 28(1) of the act provides for the functions of corporations not falling under Guystac (52). Subject to section 5, the minister assigned responsibility for a particular corporation may qive it qeneral directions on policy to be followed in exercisinq and performinq its functions. One difficulty about provisions of this nature is that, in the absence of clear time indicators qeneral directions may be based on political expediency, and because directions must he followed they may adversely affect on-going programmes. Under section 29(1) of the act, a corporation is permitted to appoint committees to examine and report on any matter whatsoever arising out of and connected with any of their powers and duties. A committee must have at least two members of the corporation, and other persons who may or may not be members of the corporation, whose assistance or advice the corporation may desire. In theorv corporations could involve members of the public in its orqanisation and runninq, but this does not appear to have been done. However, committees are not mandatory nor must members of the public or pressure groups (53) be on any committee. Section 20(4) empowers a corporation, by resolution, to adopt, wholly or in part, or with modification, additions or adaptations, the report of any committee. There is no provision for unanimity on recom- mendations put forward by a committee, neither is there provision for any member of the committee to be present at the board meeting when the recommendation is being discussed and voted on. However the presence of committee members is urged so that they can clarify issues within the recommendation or answer any questions that may arise. Committee members need not be members of the board (54), hut if they are the committee members would be able to vote on recommendations as members of the board. This would not guarantee support of the recommendation of any committee, because board members could be minority opposers to any recommendation. However, as the number of noncorporation members who may be appointed to a committee is not specified the corporation may appoint only one other person. Recause any recommendation from a committee must be passed by resolution, it must at least be considered by the board (55). Section 19(9) allows the corporations to coopt people to attend specific meetinqs to assist or advise the corporation, though these persons do not have the riqht to vote. This allows experts and professionals to be coopted on the board for specific purposes. The nature and quality of disclosure that members of a corooration must make to the corporation when they have an interest in transactions about to be entered into by the corporation is of interest. Under sec- tion 27(1) a member of a corporation who is in any way interested in an application for a loan, or a company or firm in receipt of such a loan, or a contract or proposed contract, or in any arranqement or proposed arrangement with the corporation must declare the nature of that interest at a meeting of the corporation. This implies that the corpor- ation member is also a board member, and therefore many department heads may not fall within the scope of this section. Although there appears to be a heavy responsibility on corporation members to declare interest in transactions, section 27(3) states that a general notice that the member is also a member of a specified company or firm, or is to be regarded as being interested suffices, and such declaration shall be deemed to be a sufficient declaration of interest. Under section 27(4) a member having an interest must not vote on the matter and by section 27(5) if the member does vote that member is liable to criminal penalties. Section 27(3) excludes membership of cooperative societies which is a striking omission because highest qovernment authorities had often stated that the cooperative sector would become the dominant sector. Why should an interest in one of these surplus-making entities not therefore have been the subject of disclosure? A member is not required to disclose either size of shareholding in a specified company, whether that shareholding entitles the member to be a director, or whether the member is a director. The interest in a company that the shares represent is dependent on the number of shares issued. In addition, as all of the contracts or arrangements into which a corpora- tion may enter do not require the sanction of the board, the need for disclosure under section 27(3) may never arise, and therefore this sub- section does not deal adequately with the question of disclosure of interest. The requirement for full disclosure should have been made with all disclosures forming part of the records of the corporation by being minuted. In addition, it should have been mandatory for all higher level management personnel to furnish information on all business interests and involvement in cooperative societies. The provisions should have operated for as long as a member remained in the affected category.

Conclusion

Ownership by the qovernment, either in whole or in part, of industrial, business and other enterprises and commercial undertakinqs had become a major political issue at the time of the establishment of Guystac. Opposition was not to the establishment of Guystac per se, but to its proposed structure. Among other thinqs, PPP members were opposed to the prime minister or other ministers being president of Guystac, the absence of provision for participation of members of the opposition on the board, the absence of laymen on the proposed boards of other corporations, and the inadequate provision for workers' repre- sentation. From the debate it is difficult to ascertain if the opposition wanted the government to deal with all the objections before givinq its support to the bill. Although both the opposition and qovernment aqreed on the need to reorganise and streamline the operations of public corpora- tions to make them efficient, it is difficult to conclude from the debate what machinery for effecting this reorganisation would have been acceptable to the opposition. The opposition used the debate to expound its views on the country's political situation in general, and on the performance of some public corporations in particular. They naively seem to have thought that by exposinq the inadequacies of cor- porations and entities such as the Telecommunications Corporation, the Electricity Corporation, the Guyana Rice Marketing Roard and the National Insurance Scheme, they would have had an impact either on the government or on the public as a whole. The only opposition amendment to the bill that was accepted was proposed by Sutton (56) who voted for the amending bill. The opposition pointed out some unpalatable aspects of the bill but failed to show how its implementation would fail to bring about the agreed necessary changes in the function- ing of public corporations, or how it would have radically curtailed the widespread fraud, corruption, mismanagement and political patronaqe of which they so bitterly complained. They also did not propose any viable alternative to the bill. Although the government admitted to the existence of some weaknesses in the public corporate field, it gave the impression that the implementation of its proposals would have been a virtual panecea, and showed contempt for the opposition objections. The opposition's proposal that cabinet was the proper agency for effecting the proposed changes was described as 'alarminq', and the qovernment stated, and rightly so, that the opposition had not put forward any arqument against Guystac, and dismissed the charge of denuding ministers of all their powers with respect to corporations by saying that rule-making powers were obviously duties which any minister would prefer to shed and hand over to an organisation like Guystac. The government did not suggest that some of the rule-making powers could have been left to the corporations themselves. Although subsidies were debated it was not shown how removal of subsidies from some of the corporations would have achieved efficiency. It was accepted however, that grantinq sub- sidies to public corporations was a veil for inefficiency. The opposition demand for representation on the boards of public corporations was dismissed by the qovernment which claimed that the opposition submitted names of persons who were unsuitable to the prime minister, and that they did not accept appointments on some boards. Refusal of an appointment to serve on the Relfield School Roard was cited as an example of the latter (57). This refusal might be under- standable but the opposition's alleged withdrawal of its membership from the National Insurance Roard must have had some deep political motive. The PPP's record on workers' representatives on the boards of public corporations was also attacked. The government defended its policy on startinq a printinq and publishing enterprise by pointing out that printinq was a necessary activity of a civilised society and that the government was entitled to have a newspaper published. It is significant that today Guyana has only one daily newspaper, owned and published by the government. The Public Corporations Act gave no clear demarcation of lines of power to any corporation other than Guystac and allowed Guystac to interfere in the activities of public corporations. It also allowed for political interference in the activities of corporations, includinq Guystac, and gave political heads and Guystac the legal machinery for shielding or denying their political errors and management blunders. It was perhaps the type of legislation politicians wanted to achieve their political goals, but it did not appear to be the right legal framework for achieving most of the basic tenets of socialism. The Public Corporations (Amendment) Act, 1976, resulted from a review of Guystac activities after five years of operation. At the time Guystac was established there were nine public corporations and this had increased to 23 by 1976.

The Public Corporations (Amendment) Rill 1976

The Introduction of the Rill

During the debate on the Public Corporations (Amendment) Rill 1971, it had been pointed out by the opposition that the president of Guystac would have to be a superman to undertake the responsibilities assigned to the position, and suggested that there was an intention to deceive the people. Whether correct about the intent, the opposition member was right about the limitations of human endeavour. When presenting the Public Corporations (Amendment) Rill 1976 to the House, the Minister of Trade and Consumer Protection pointed out that being chairman of the 23 enterprises under Guystac was too much for one person, and that the expanding scope of the Guyana State Corporations and Guystac required remodellinq of the Cuystac struc- ture. Although there had been considerable improvements in the opera- tions of the public enterprises, the government was not entirely satis- fied with their performance. The improvements included stabilisation of industrial relations with better employee/ernployer relationships and resulting increase in productivity, workers' representation on the boards of three corporations, and improvements in accountinq and financial reporting. The minister summarised the objectives of the corporations, which were to produce for the people of Guyana an efficient, outstanding and satisfactory service at the least possible cost. Their results must be based on the need to meet consumer demands, to improve the quality of life and to enhance or increase the socialist thrust. Recause the enterprises are owned by the state, they must of necessity tailor their objectives to coincide with the objectives of the party, the People's National Congress, and the government. The minister also pointed out that government employees had proven themselves capable of running the enterprises and that the corporations that had been taken over had shown better results than under their former owners. The minister, however, reiterated that the government was far from satisfied that it had done well enough, that there were many cases where the services and other products provided by the corporations needed improvement, and that tolerance and understanding would be needed by everybody. He then disclosed that a committee (58) with specific terms of reference to examine certain areas of the corporations would be appointed to examine all of the operations of the corporations with a view to improv- ing the quality of service to the people of the nation. The Minister of Trade and Consumer Protection, who was also president of Guystac stated in his opening remarks that the purpose of the bill was to rationalise Guystac. A cynic may contend that he meant exactly that, but apart from that, one of his reasons for the need for a change was the management structure of Guystac. It appears that the government had not envisaged such a rapid growth in the number of public corporations, nor considered the impracticality of having one person assigned as chairman of all boards of the corporations. These problems should have been anticipated. The efficiency and dynamism that the government sought to introduce can have a number of interpretations. Efficiency had been a problem of public corporations since 1971 and therefore dynamism was perhaps the only new element that the party and government wanted to introduce, or efficiency and dynamism could have been the new thrust of the party and the government. The speech introducing the measure to rationalise Guystac appears to have been an exhortation to party members or tongue lashing to management. Although Guystac had been streamlined about five years earlier the minister still spoke in terms of management needinq to cease to inculcate and mimic their predecessors. Guystac appears to have done little between 1971 and 1976 to control the capitalist attitudes of its corporate management staff who seem to have failed to grasp the principle that surpluses (which the corporations were obliged to make when not specifically directed not to do so) could be achieved outside of purely capitalist 'only motivating force' principle. The poor management/employee relationship could have resulted from the 1971 structure of Guystac and the failure of Guystac and the corporations to act fully and decisively on the matter of workers' representatives on the boards, and to make use of the committee and board cooptee (59) pro- visions in the Public Corporations (Amendment) Act, 1971, and Public Corporations Act cap. 19:05. Guystac must take the blame for its abject failure to recognise such grave shortcomings as capitalist management and pompous managers at a much earlier date. Under the 1971 Guystac structure, the president was a cabinet minister, the vice- president, at least for some years, was a cabinet minister, the secre- tary was permanent secretary to the Ministry of Public Corporations, and there was therefore no shortage in the number of people to provide a continuous flow of relevant information on government policy to the corporations. Nor was there a lack of means of communication for qov- ernment to be advised of any recalcitrancy within the corporations in carrying out its policies. It is almost ludicrous for the minister to say that the people working within the framework of Guystac must alter their outlook and come in line with the new philosophy and thrust. Was this discovered just prior to the introduction of the hill? The minister recognised that no new philoeophy or thrust of his party and qovern- ment was the cure for the situation. He also preferred to rely on trusting that the new philosophy, and new thrust would bring the desired success. He vested the future of a vast and important sector of the country's economic life on a legal structure, the success of which he launched on 'trust'! In summary, the minister anticipated achieving the expressed qoals of the Public Corporations (Amendment) Bill 1976 through rationalising the management and administrative portfolios in Guystac; everyone adapting to the new philoeophy and thrust of the party and govern- ment; perfecting accounting and financial reporting of the corporations; improving workers' representation on the boards of corporations; acknowledging that not all public enterprises are geared for achievinq surpluses; appointing committees to diagnose the problems of the cor- porations; and trusting that things would go right.

The Opposition's Point of View

In 1976 the United Force (60) party formed the opposition. The leader, Fielden Singh, was the only speaker in the opposition to the measure. He expressed concern on the fate of prlvate enterprise and the extent of nationalisation that was taking place. He pointed out that after the takeover of the Booker enterprises the qovernment would be the employer of over 90 percent of the work force. Concern was also expressed about local as well as foreign industry being taken over. The opposition was also worried because many small businesses were being forced out of operation by the government's policy on import licensing which gave it a stranglehold on the entire private sector. Companies that were refused import licenses would eventually be forced out of business. Singh demanded from the government a statement on the future of private enterprises, other than that they would be allowed to exist, and asked the government why the takeovers had not resulted in reductions in the cost of living. This contribution to the debate by Singh, in addition to high- lighting the issues that concerned the lhited Force, points to some shortcomings in their understanding of the declared political philosophy of the government. It is clear that the opposition speaker considered that the bill, when made law, would affect the structure, control and management of all state enterprises and business undertakinqs in a way that would also affect private sector concerns, thouqh he did not indi- cate which provisions of the bill would do this. The opposition also did not appreciate that forcing private businesses to close by back door nationalisation did not necessarily mean that all small businesses would be forced to close, as there would still have been an adequate supply of goods for the medium sized busi- nesses to trade to the small businesses. His concern seems to have been mainly about the assumed huge profits made by big business, and why the government had not been able to lower prices after national- isation. Singh felt that a complete reassessment of the public corporation situation was required, and that action should be based on that assess- ment. He summarised the situation at the time by pointinq out that the boards of the corporations were comprised mainly of staff of the corpor- ations, and that the public had very little say in their manaqement. The board's decisions reflected the party's will and the party's desires; approval of any measure was normally influenced by one person, dis- cussions on most matters were normally very limited and sometimes these matters were of vital importance. There appeared to he party members on the various hoards and even the few workers' representatives were elected on the basis of a party bias. Workers were represented on the boards of only three of 23 corporations. The staff of the corporations, some of whom were on the boards, were all hand-picked. With party politics so rampant in the corporations, attempts to dismiss someone for inefficiency, rudeness, or blatant refusal to carry out instructions were useless. People who had been dismissed were able to qo to the minister and be reinstated. Managers were at the stage where they would not take disciplinary action unless they had received instructions from above and staff were recruited through the Congress Place(61). Sinqh contended that the problems of political patronage he had identified were recognised by the prime minister himself, and had been alluded to during the latter's address to the PNC at their 14th Annual Delegates Conference (62) in 1971. After five years the problems were still the same. Singh suggested that the corporations must be examined on an individual basis to pinpoint specific problems. Although the complaints were few in number, they were important because they went to the very root of Guystac. They make for chaos in the runninq of the cor- porations and affect the financial success of the corporations that are meant to make profits. Singh made no direct criticism of the amendments proposed in the bill, and it is therefore not clear if the bill was acceptable hut was not being supported because of the problems within the public corpora- tions. Singh also did not propose any framework within which remedies to the problems could be applied, nor any solutions to the problems. In replying to the opposition criticisms the Minister of Trade and Consumer Protection reminded the House that the prime minister had stated in a radio broadcast of January 1976 that the private sector had an important role to play in many areas of distribution, and even in cases of manufacturing, and he did not share the view that because the state, as the representative of the people, had paramountcy in finan- cial, physical, monetary, and economic matters, it could regulate the private sector to ensure that there was not the type of exploitation that was the hallmark of the capitalist system. In the statement by the prime minister the distribution and manufacturing areas open to the private sector were not specified, nor were areas of activity open to private investment indicated. The state- ment did not answer the uncertainties of which the opposition com- plained which extended even to the small shopkeepers. Two other interesting points arose from the prime minister's statement, and though neither was directly relevant to the amendment their qeneral importance cannot be overlooked. The use of the word paramountcy raises the question of whether the idea of personifyinq the state through the party was being gradually introduced or hinted at, and it is not clear if he meant that exploitation would continue to exist and, if so, the type of exploitation, nor if other areas could be regulated to produce the same type of exploitation. The prime minister's statement raised more issues than it answered. In dealing with specific points raised by the opposition the minister pointed out that where foreign investment had been encouraged from 1963 to 1975 through the Guyana Development Corporation the results were minimal in comparison to the expenditures, and that the decline in foreign investment was not important because Guyana had to he the master of its economy. He also pointed out that the government could not continue to support shopkeepers unless they were prepared to have an input to the economy through manufacturing. On the subject of licensing, the minister said that the qovernment had to be involved in controlling imports to maintain a balance of pay- ments at the international level, and this was done through licensinq. However objections had been to the method of issuinq licenses rather than the principle, and no reference was made to the method. The minister contended that opposition accusations of excessive price mark-ups by the Guyana Gajraj Corporation were incorrect, and that mark-ups never exceeded 20 percent. The minister replied to the complaint about staffinq corporations by noting that vacancies were advertised and were open to competition, and that a committee existed to examine applications for positions at certain levels of the corporations. He also did not deal adequately with the questions on the financial affairs of the corporations and their overdrafts. After pointing out that the problem of duplication of industries would be addressed and that industries would be reorqanised, in his concluding statement the minister said that the legislation would allow Guyana to control its own resources, imports, and exports, and lead to new economic strength.

The Public Corporations (Amendment) Act, 1976

The Public Corporations (Amendment) Act, 1976 mainly affected the Public Corporations Act, Chapter 19:05 (63). Sections 3 and 46 of the principal act have been repealed and reenacted, while Sections 4, 9, 15, 17 and 46 (in part) have been amended and a new section, 54A, has been inserted in the principal act. Section 3 of the act makes the following changes: provisions for the appointment of "...such number of executive chairmen as appointed by the Prime Minister (64); reduc- tion of the number of 'other persons' on the Roard of Cuystac whom the prime minister may appoint, to not more than three from the oriqinal five; only two persons from among persons employed in public corpora- tions and other bodies under the supervision and control of the corpora- tion may be appointed to the board of Guystac"; and it qives the prime minister the power of assigning to executive chairmen the responsibility for any particular corporation or corporate body under Guystac. Section 4 of the principal act has been amended by Section 3 of the amending act to give the secretary of Guystac further powers, in that the secretary is entitled to delegate to any officer of the corporation (i.e. Guystac) the power and authority to perform on his behalf such of his functions as the secretary may determine. Another chanqe of significance is in section 5(a) of the amending act which amends subsec- tion 15(l)(d) of the principal act. Instead of a representative to the board being selected by persons employed by the corporation from amongst themselves, the new subsection qives the president of the Guyana State Corporation the power to appoint someone to the hoard from among persons employed by the corporation. An amendment to section 15(4) of the principal act says that the workers representative appointed by the prime minister under the new provision and persons appointed to the boards of corporations where such persons were not members of the corporation are liable to be removed from office at the pleasure of the president of the Guyana State Corporation. The power and method whereby a corporation may enter into certain transactions may now, under a new section 17(5) be exercised by a person or per- sons specially or generally authorised by resolution of the corporation to do so. Other amending sections (65) deal with streamlining superan- nuation payments between public service and Guystac personnel. From these amendments it is difficult to assess how the minister planned to rationalise Guystac. Although section 3 created the new post of executive chairmen, it left appointments solely in the hands of the prime minister. Where the prime minister was not president of Guystac this power was still exercisable by him. One wonders whether he would be making appointments as prime minister per se or as the minister responsible for public corporations fallinq within the portfolio of the Ministry of Public Corporations. The prime minister, in what- ever capacity, assigned duties to those executive chairmen he appointed, and the question then arose of whether these executive chairmen were employees or officers of Guystac, the corporations to which they were attached, or the prime minister. If they were officers of Guystac, then they could be assigned duties by the secretary of Guystac under the new and additional powers given by section 3 of the amending act, under which the secretary would not be acting in the capacity of permanent secretary to the Department of Public Corpora- tions. The relationship between the vice-president of Guystac and executive officers was not clear. They could have been equals because they were appointed by the same person, even though his title could differ. As the declared aim of this legislative measure was to rationalise Guystac it may be argued that the creation of the new posts would alleviate the frustration of being unable to chair all the boards. How- ever the difficulty in determining the status of the executive chairmen vis-a-vis the vice president of Guystac could create conflict and con- fusion both within and without Guystac, and questions on their func- tions and those of the secretary of Guystac. Another point of interest was the question of their remuneration. Guystac as a parent corpora- tion could appoint officers to corporations and require that their salaries etc. be paid by those corporations, on the basis that they were receiving services from the officer. If a president, vice-president or secretary however made appointments to offices within the corporations without a decision of the board of Guystac a different situation arises. Under the rules of company law such appointments would be void because they lack the authority of the parent company, but with leqis- lation in place such appointments can be made by the person named with- in the act. This device could lead to confusion rather than rationali- sation and coordination of policy because, as the prime minister who could legally make appointments would also be the fount of policy- making, the question then arises on what Guystac's functions were with regard to policy making and implementation. If Guystac was denuded of policy-making and implementation powers then it was left, inter alia, with the power of appointing officers of a certain status to the other corporations; but here again conflict could have arisen in that Guystac appointees may not have been acceptable to the executive chairmen for a variety of legitimate reasons. This new section compounded rather than simplified the functions and duties of executive chairmen. The section 3 amendment which affected the number of persons to be appointed to the board may be justifiable hut no reasons were qiven for the statutory reduction in numbers by the minister. These persons appointed under section 3 could be removed at the pleasure of the president of Guystac. It appears from the act that the terms prime minister and president of Guystac were being used interchangeably. If the offices of prime minister and president of Guystac were not held hy the same person, one person could appoint and the other dismiss. Before the amendment the legislation on worker representation provided for representatives to be elected by the workers themselves with the Minister of Labour making the rules in consultation with the TUC or other body representing workers. This machinery was not put into operation even though workers' representatives were on the boards of three of the 23 corporations. The actual number of representatives and the method by which they were appointed to the boards was not elaborated on. The opposition seemed to think that the workers' repre- sentatives were hand-picked. Under the amendment the leqal mandate for appointing worker representatives rested solely with the president of Guystac. There was no requirement for the president to appoint representatives to any or all of the boards, nor was there a require- ment to disclose the criteria for appointments, either qenerally or specifically, if and when the power was exercised. There is no indication if the workers would be involved in the selection of their representative to the board, and it is reasonable to assume that worker representatives would be hand picked by the presi- dent of Guystac, who was also of course the prime minister and would therefore select someone who was sympathetic to his party's policies. In 1971 the prime minister had said that workers representatives were being put on the board of one corporation and that more would follow. The word 'put' may have been intentional as the new legislation allowed the president of Guystac to 'put' workers on boards to 'repre- sent workers' and not as 'workers' representatives'. Without clear guidelines on selecting workers to sit on boards, the prime minister's choice was paramount to the free will of the workers.

Conclusion

The Public Corporations (Amendment) Act 1976 gave the prime minister or president of Guystac the paramount decision makinq power on appointments to the boards of corporations, including Guystac, on when such appointments would be made, and in some cases what the duties would be. In effect, it gave the prime minister or president of Guystac the legal means for controlling, in every conceivable sense, the operations of all public corporations includinq Guystac. Although it was stated that attitudinal changes on the part of the population would be necessary to help solve the problems of the public corporations, it is difficult to see how an act dealing with purely structural changes could result in changes in attitude. As the minister's speech echoed the thinkinq and decisions of the party and government of which he was a member, it can be surmised that behind this legislation lay deeper politically motivating factors than an exam- ination of the measure itself or the minister's speech discloses. The Uae and Effect of Commissions of Enquiry

Since 1973 at least three Commissions of Enquiry (66) have heen established to examine either qenerally or specifically areas of activities of public corporations. The first of these was a ministerial commission to enquire into the relationship that had developed between Guywa (67) and its manaqement staff - an industrial relations matter. The minister responsible for Guywa seems to have ordered the enquiry on the initiative of the Public Service Union representing workers within the corporation. This was a one-man commission chaired by Professor Harold I-utchman of the University of Guyana (60) whose mandate was to hold an enquiry and compile a report for the minister for cabinet discussion. As of 1978 the report had not been published and its recommendations are unknown. The next two commissions, one of which was the Merriman Commission, were appointed to examine the reasons for power failures at the Guyana Electricity Corporation. The Merriman Commission was appointed because the regularity and extent of the power failures were termed an emergency. The other was the I-uckhoo Commission. 1-ike the Merriman Commission, its work had not been completed at the time of writinq and its impact cannot be assessed.

Some Considerations on Public Corporations

This review of the law and politics of public corporations shows, inter alia, that the legal structure can be used to effect centralisation in some of the most important areas of management of public corpora- tions. It is clear that a great deal of power, perhaps too much, has been placed in the hands of one person, whether that person is called the prime minister or president of Guystac in the acts. This centrali- sation not only extends to the appointment of top personnel to the corporations but also to the appointment of members to the boards of corporations, and workers' representatives. The exercise of such ex- tensive powers by one person in a situation where it is declared that the party is paramount to the government, inevitably justifies the charges of political patronage in such appointments. Even where a charge of political patronaqe can not be made it is still probable that the appointee may be required to subscribe first to the philosophy of the party rather than government policy. At a minimum, the legal structure is open to objection on the basis that it has the potential for patronage to be practised on the widest possible scale. While Guyana has a two-party system of government and while the socio-political eus- picion that qovernments in Guyana are inclined to qive weight to ethnic considerations remains, legislation should not he framed in a way that will give rise to suspicions and accusations of political patronage playing a part in the government's dealinqs with the population. Appointments to and dismissals from public corporations at the level discussed should be put in the hands of a constitutionally enshrined body rather than the unofficial committee referred to by the Minister of Trade and Consumer Protection in his speech. It is also stranqe that the prime minister has the power to appoint worker representatives to the boards. As workers at the corporations can he affiliated to any of the parties, or to none, the criteria for appointing a representative of the workers who would be satisfactory to everyone would he difficult to establish. Although the prime minister stated that he would formulate the selection rules and advise the workers of these, there was no declaration or provision for considering the workers' views on any rules. It was pointed out to the Merriman Commission examininq the Guyana Electricity Corporation that there was no aqreement on rules for election and removal of workers' representatives to boards, hut there is no evidence that the matter was pursued with vigour or enouqh persis- tency by either party. If there had been willinqness on the part of the government to implement the scheme of workers' representatives on the boards of public corporations through the election process then rules could have been formulated and the workers called upon to approve them. In the absence of such action it can only be concluded that workers' participation in management of the corporations throuqh representation on the boards was only heinq qiven lip service by ministers and government employees. Appointments of workers to the boards of corporations would most likely reflect party considerations not necessarily inclusive of workers' confidence in the appointee. Another area of criticism was in the appointment of auditors to audit the accounts of corporations. The independence of such an audi- tor is crucial to public confidence in the audit. Moreover, it is the duty of any government to satisfy the public that its taxes are heinq spent in a proper and beneficial manner, and there seems no better way than to have the accounts of the public corporations audited by an independent auditor whose position is constitutionally guaranteed. Lack of staff ought to he no problem as accounts can be farmed out to pri- vate auditors with detailed instructions on how the audit must he con- ducted, and the constitutional auditor can have the power to supervise such private firm audits as deemed necessary (69). The auditor may be required through the constitution to personally present the accounts to the House. Although objections to this proposal may he made on the grounds that the auditor does not have the approval of the electorate, the constitution provides for technocrats not only heinq members of the House, but being cabinet ministers, although they do not have a vote on matters before the House. Such a provision would nullify the con- tention that the legislation gives opportunity for the prime minister to hand pick the auditor of public corporations and the alleqation that the latter may be the recipient of political directives. Again, the proposed device could ensure that audited reports of the accounts of corporations could be presented to parliament on the required dates. The legal machinery set up for public involvement in the runninq of corporations can be criticised for similar reasons hut it is difficult for the public to have full, effective and meaninqful participation in public corporations. Groups such as the Consumer Association should he given repre- sentation on appropriate boards as a matter of policy based on specific legislation. The public could also he involved at another level, in that corporations such as the Electricity Corporation, the Telecommunication Corporation, Guyana Transport Ltd., Transport and Harbours and Guyana Airways Ltd., should be compelled and compellable throuqh legislation to justify publicly their charqes for services and any increases to these. References

Ordinance No. 23 of 1962. The government was led by Cheddie Jagan as Premier. For example The Guyana Electricity Corporation, The Water Authority, Marketing Corporation, and Georqetown, New Amsterdam, Bartica etc. Hospitals. At that time primary school education was free, thouqh adminis- tered, not by any corporation, but by the Ministry of Education and, in some cases, jointly with one of the denominations. Further secondary education was sometimes free or subsidised. No corporation was responsible for primary and/or secondary educa- tion, hut the University of Guyana is a Public Corporation, at least in the legal sense. In 1953 the Constitution of (British) Guyana was suspended by the British qovernment on the ground that the then qovernment headed by Cheddie Jagan as Premier and Forbes Rurnham as Leader of the House of Assembly, was about to bring about a com- munist transformation within the territory. Rill No. 2411963 (Legislative Assembly). At that date (British) Guyana had a bicameral legislation consistinq of a Senate and a House of Assembly. Qills, except money bills, could have been introduced in either House. Further, senators were nominated, not elected. In addition to an amendment of 1964 - Act No. 13 of 1964 under the Jagan Government - there have been the following amendments and orders under the Rurnham Government: Acts Nos. 14 of 1971, 4 and 11 of 1972. Public Corporations Act; cap. 19:05 (a consolidating act); Public Corporations (Amendment) Act 1976 i.e. Act. No. 4 of 1976 and Orders Nos. 28 and 43 of 1972 and 11 of 1973. See Declaration of Sophia, 14 December, 1974. It has been alleged that the PNC came to power on a riqged elec- tion, with recorded votes from overseas, especially the UK and the USA, accounting for a great measure of the alleged malpractices. Even though there have been television programmes in the UK pointing to confirmation of such malpractices, there has been no challenge to the validity of the voting exercise in the courts with a view to havinq that or any other election annulled after the declaration of the results. Public Corporations Act, cap. 19:05, Laws of Guyana, as amended by Act. No. 4 of 1976. See Interpretation and General Clauses Act, cap. 201, Laws of Guyana. Companies Act, cap. 89:01, Laws of Guyana. Acquisition of Property for Public Use Act, 1975. The private sector has repeatedly asked the qovernment publicly for clear guidelines on their role in the economy, hut no guidelines have been given. Of course this concept must differ from that of paramountcy of the party. This differs little, if at all, from the philosophy of Jagan's qov- ernment in 1962: See Parliamentary Debates Vol.1 - 25.9.62 15th sitting - The Senate 1962. Witness the several Price Control Orders and Sale of Goods Act, cap. 91:01, Laws of Guyana. Public Corporations Act, cap. 19:05, Laws of Guyana. Public Corporations Ordinance No 23 of 1962. Public Corporations Act, cap. 10:05. Bill No 24 of 1962 (Leqislatlve Assembly). Per Senator Hubbard, Parliamentary Debates Vol. 1 25.9.62 15th sitting in the Senate. See point 7, Bill 2411962 (L.A.) Constitutional Law of the USA teems with examples of this situa- tion. Now Companies Act. cap. 89:01, Laws of Guyana. The legal status of public corporations as structured in Guyana has not been determined by the courts. See Parliamentary Debates Vol. 1 - 25.9.62 - 15th sitting. Legislative Assembly Reports, Vol. 1, Sept. 26, 1962. These entities, now nationalised, were owned by foreign multi and transnational corporations. At the time of writing both Jamaica and Guyana had declared that their paths of development would proceed alonq socialist lines. In Guyana, this is a conveyancinq term. See sections 10 and 34(4) Ordinance No 23 of 1962. Section 35 (1). But see the current 'Newspaper' Act, and the proposal for liability for libel against the state for inclusion in a 'new' constitution. Act No. 14 of 1971: Act to amend the Public Corporations Ordi- nance, 1962, for the purpose of establishinq the Guyana State Cor- poration and for other purposes connected therewith. The constitution provides for persons who did not face the elec- torate to be nominated ministers by the qovernment. See cap. \I, Article 34(4), Constitution of Guyana. Now known as Guybau - a 'private' company t~holly owned hy qov- ernment. cap. 19:05 Laws of Guyana: This act is based in Ordinance No 73 of 1962 as amended by Ordinance No. 13 of 1964, Act No. 14 of 1971, Acts Nos. 4 and 11 of 1972 alonq with Orders Nos. 70 and 43 of 1972 and Order No. 11 of 1973. The prime minister was also the minister responsible for public corporations. Section 3(1) (b). See for example, the Bauxite Industry Development Company. Section lO(2). See Bell Houses Ltd. v City Wall Properties Ltd. (1966) 7.17.9. 656. c.a. See section 46(1). Sections 46(2) and (3). See Re. German Date Coffer Co. (1882). 20 Ch. D 169. . See Attorney General v Great Eastern Railway Co. (1080) 5 App. Cas. 473: 28 W.R. 769. Rut see, Introduction Ltd. v. National Provincial Rank (1969) 2 W.L.R. 791 (1969) 1 All E.R. 007. Shindler v Northern Raincoat Co. Ltd. (1960) 1 WLR 1038; ln4 S.J. Section 28 (3). Guyana Water Authority, for example. For example, the Consumers Association. The act does not define the word member with respect to corpora- tions. See Re Minister of Health, ex parte Yaff (1930) 2KR. 90. Member Sutton. His amendment requiring the submission of accounts by corporations not later than nine months after each calendar year was accepted. Relfield School is a corrective institution for qirls. This committee called the Merriman Commission was set up by the Presidential Order of 9 December, 1976. Sections 20(1) and (2) and Section 19 Public Corporations Act, cap. 19:05 Laws of Guyana, respectively. The United Force opposition party had three seats in parliament under the proportional representation model of elections. Congress Place is the Georgetown headquarters of the PNC. Held at Queens College on 18th April, 1971. Now referred to as the Principal Act. Sections 3(l)(c), (d) and (el. Section 8 and section 54A. These three have been selected because one was set up prior to the 1976 amendment and was a ministerial commission, another was set up almost simultaneously with the passing of the act, and the third after its passage. Guyana Water Authority; a non-Guystac corporation. Dean of the Faculty of Social Sciences and an expert on public administration. This opinion arose out of workshop discussions on a paper: Con- trols over public enterprises: ministerial, parliamentary and public, by A.R. Carnegie. See Chapter 1.