The Deeds Registry Amendment Bill of 20123604 02 Aug, 2012
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Sir, it gives me great pleasure to be the person piloting this Bill into its second reading.
Sir, you, yourself, and Members of this Assembly would recall that when I did my budget debate presentation I unveiled certain plans and a legislative agenda and the Official Gazette Bill 2012 – Bill No. 9/2012 was referred in that presentation.
This Bill is an extremely important piece of legislation. In short, what it seeks to do is to establish, for the first time in our country, a statutory footing for the Official Gazette. Secondly, it seeks to make that document more accessible to the people of our country and to the people of the world by placing it online on a Government’s website.
The Official Gazette’s presence and use as part of the legal system of our country date back to some four hundred years. I can find no precise time, date or manner of its introduction into our country, but my research indicates that it was brought here by the Dutch sometime in the seventieth century. It has remained with us since. Over those centuries, its importance has not declined. In fact, and instead, in my view, I believe that its importance has increased tremendously. Though it has been with us for all of those centuries, it has never been a subject of legislation and I can find no reason why this omission has existed for so long. Its presence and evolution to its current important status seem to owe itself to custom and practice only. Yet, none can deny the fundamental use which it has served and the multidimensional functions which it performs.
Although its existence does not lend itself to any legislative basis, it has found itself expressly mentioned in a series of legislation in our statute books. One only has to examine the Interpretation and General Clauses Act, Chapter 2:01, to glean the various pivotal functions which the Official Gazette performs. Section 15 of that legislation provides for every Act passed by the Parliament to be published in the Official Gazette and to come into force, or to come into operation, on the date of that publication, unless the law otherwise provides.
Section 21 provides that all subsidiary legislation, proclamations, rules, regulations, orders and by-laws shall be published in the Official Gazette and shall, likewise, come into operation on the date of the publication, unless it is otherwise stated.
Section 27 provides that where any written law ascribes to the President, Minister or public officer, any functions ascribed by a statute, the name of the President, Minister or the public officer must be gazetted. That is why whenever there is a new Government the entire executive is required to be published in the Official Gazette with their ascribed functions. Under the Prescriptive Title law, all application for prescriptive titles must be advertised in the Official Gazette so that anyone who may claim an interest in the property, which is the subject of that application, is required by law to lodge an opposition to that application and to be heard by the court that will eventually hear the application for prescriptive title.
The Deeds Registry Act and the Deeds Registry Rules provide that every conveyance of a property held by transport must be advertised in the Official Gazette to provide the opportunity for all and sundry who may feel that they have an interest in the property and that that interest is going to be wrongfully alienated to file a notice of opposition to the passing of that conveyance. Similarly, Sir, that advertisement also seeks to inform creditors of the transportee, that is, the holder of the transport, that he is or she is about to alienate a property to which he or she has a right to levy in the event that he or she wishes to litigate for his or her recovery of that debt and to oppose the passing of that conveyance and to file an action immediately for the recovery of that debt.
The law also requires every mortgage to be advertised before it crystallises as an encumbrance on the property which forms the collateral of that mortgage. Again, all the world gets an opportunity, by virtue of that advertisement in the Gazette, to file an opposition against the mortgage, if it feels that it has an interest in the property that will be the subject of the mortgage or if it feels that the person, who is the holder of the transport, owes it some debt and by the encumbrance of this property, by virtue of the mortgage, would tend to defeat or make it difficult for it to realise any judgement which it may obtain as a result of filing proceedings to recover that debt.
The High Court Act requires that every action must be advertised in the Official Gazette before the trial commences so that all parties, their attorneys-at-law and witnesses, would get an opportunity of being informed that the case will be begin its trial. Similarly persons who are to be tried at the criminal assizes their names are published in the Official Gazette and the date and time of their trials are thereby advertised.
Anytime a property is to be sold at an execution sale, that property reaching that stage, by virtue of an enforcement process, pursuant to a judgement granted, that execution sale, its date, place and the property that is going to be sold also required by law to be advertised in the Official Gazette. As a lawyer, there is the ancient remedy of parade execution which forms part of our legal system. That remedy allows the local authorities and rate collectors, if they do not fall in the category of a local authority, the right to put that property up for sale for non–payment of rates and taxes. All properties that are going to be subject to that parade execution, as it is the technical term, are required to be advertised in the Official Gazette and the date and time of the sale also published.
The above contains only some of the matters which are required to be published in the Official Gazette. I say all of that to say that I do not think anyone can rationally dispute the importance that the Official Gazette serves in our legal and governmental structure. If I may add a few other examples as they come to my mind, all officers attaining a certain rank in our disciplined forces are by law required to be gazetted. All of our national holidays, which are to be declared, are required by law to be gazetted. It is an almost inexhaustible list of things by practice and by statutory obligation which is required to be gazetted. Yet for some inexplicable reason, and critical as all these functions are, the Official Gazette was never part of a legislation of our country and this Bill seeks to correct that omission, one, that I said is some four hundred years old. In that context this is quite a historic piece of lawmaking which we are part of.
The other aspect that the Bill seeks to address is a common problem known to all of us - because we are politicians, we are on the ground, we walk the villages, we walk the streets, we walk to the towns of our country and we receive regularly the complaint - is that the Official Gazette is not published on time; that the Official Gazette is not available or accessible easily, or as easily as it should be, to the ordinary people of this country. When one looks and reflects upon the number of important notices and matters which are by law required to be published by the Official Gazette, it is a great travesty that it does not reach - or at least that is the belief or the complaint of the people - them in a timely manner or it does not reach them at all. This Bill in its second component seeks to correct that omission.
We have accepted that we have to tread the technological paths. We have accepted that the world is going in that direction and unless we implement policies, change structures and promulgate doctrines that ensure that we are part of that global trend, then we are likely to be left behind as a country. This administration clearly recognises that, hence, there is a whole sector that deals with Information Technology (IT) and it deals with, for example, the One Laptop Per Family (OLPF) programme.
Currently, I listened to a consultant who came here recently, who revealed that, based upon his investigations and services conducted in Guyana, he found the staggering statistics that over fifty-nine per cent of our population are online or have access to online facilities. I say that “in staggering” because he revealed the statistics of other countries, in particular the most advanced countries in the world, and we rank very high among the statistics which he has revealed. One only has to look at the activity on the Facebook page, or on the internet and on the websites, and on the blogs, and so on, and recognise what a potent forum that is and how widely used it is.
Therefore, Sir, in putting this Official Gazette online not only are we taking our development up a notch on the technological ladder, but we are resorting to a course that we are almost certain will improve the situation of non-accessibility, because there is the empirical data and the actual information to suggest that our people are regularly online and they have access to the computer and to the internet. Therefore I am assured, or at least I feel sure, that this Bill, by putting it online, will address in a significant way the issue of accessibility.
Another fundamental dimension that this Bill will address is the fact that we live in a country where a large percentage of our population resides outside of Guyana, in the Caribbean but more particularly in North America, and to some extent in Europe, but they continue to own properties in Guyana; they continue to transact businesses in Guyana. In the movement of the world in the direction in which it is going, in the creation of one global village, making the information which is to be contained in the Official Gazette accessible to the entire world is of outmost importance. As a practising lawyer - Sir, you would know and my friends who are lawyers on the other side, and non lawyers too – I would have been confronted, time and time again, with the situation of proprietary fraud, where people who live overseas lose their properties. They give a power of attorney to a person with the belief, and with the view, that that person would take care of their property, but the power of attorney also authorises them to sell. The person, who is that power of attorney, is the dishonestly used to transfer or alienate that property from the owner who resides in America. The Official Gazette not being online, he has no opportunity of seeing unless someone in Guyana reads the hard copy of the document and advert his attention to the fraud and thereby he gets an opportunity to save his property. Unfortunately there are a large number of instances where this was not brought to the attention of the owner who resides out of Guyana and as a result that owner has been defrauded of his or her property. This Bill seeks again to address that unfortunate state of affairs by making the Official Gazette accessible online to all the world.
Clause 3 of the Bill simply seeks to regularise, in statutory framework, past and future publications of the Official Gazette and to maintain the evidential status quo of the Official Gazette by codifying what our practice is, that is, to make the Official Gazette receivable in evidence. That is the position now and clause 3 of the Bill seeks to simply codify that and to bring all the Official Gazettes published prior to this Bill and hereafter into the framework of this Bill. It is an important formal clause.
Clause 4 tells of the manner in which the Official Gazette will be published and where it will be published. Clause 4 also tells of all the matters that are currently published in the Official Gazette will continue to be published in the Official Gazette.
Clause 7 reiterates the practice or custom which currently is extant, which is that matters contained in the Official Gazette do not need to be proved in a court of law and they constitute prima facie evidence of what the publication is. Your Honour would know about the doctrine about judicial notice whereby all matters published in the Official Gazette of this country simply has to be laid over to a judge and they constitute prima facie evidence of the veracity of what is stated therein, obviating the need by the presenter of the evidence to the court of establishing the proof of the existence of the materials that are contained in the publication.
Clause 8 creates an offence for anyone who, in any manner, interferes with the publication of the Gazette or wilfully causes wrong information to be published in it.
Clause 9 allows the Minister to make regulations for future publications of the Official Gazette if such an occasion presents itself for regulations to be promulgated.
With those brief words, I commend this Bill to the House for it to be read a second time.
Thank you very much. [Applause]
Mr. Nandlall (replying): Let me take this opportunity to thank all Members of the House for their support. Let me assure the Hon. Member Mr. Ramjattan that the mechanisms that are in place for circulation and accessibility of hard copy will, of course, continue. This is intended to provide another source through which the Official Gazette can be accessed. To my friend, Mr. Williams, I agree that the integrity of the website or the mechanism, which will be used to publish the Official Gazette, must be a secure one. I am not one of those technologically equipped persons to speak on this matter, but I am sure the technical people, who will be charged with the responsibility of establishing the website and to put the document on the website, would be obviously concerned that it is sufficiently secured to prevent any, I think, hacking, which is the technical term, or unlawful interference.
I now humbly ask that the Bill be read for a second time.
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