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Time for Hylton to address bankruptcy laws review

Inside Parliament

BY BALFORD HENRY Senior staff reporter balfordh@jamaicaobserver.com

Sunday, August 17, 2014    

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DESPITE the current parliamentary break, it is about time that Minister of Industry, Investment and Commerce Anthony Hylton gives an update on what has been happening with the critical review of Jamaica's bankruptcy and insolvency legislations.

The Joint Select Committee (JSC), established in January, has been meeting for almost eight months now and, despite an excessive number of sittings to meet successive extensions of the deadline by the International Monetary Fund (IMF), including weekend retreats, there is still no indication when the process will be completed and a report tabled.

It should be recalled that this is the very Bill that was tabled in December 2013 in the Senate by Minister of Justice, Senator Mark Golding, instead of in the House of Representatives, where it should have been tabled by Hylton. That was done in an effort to meet an April deadline, after the Government failed to have the Bill passed by the end of 2013. But strong support from the already over-burdened Senator Golding over the period, which allowed Hylton to deal with other issues such as the proposed Global Logistics Hub, has not paid off.

The Government pointed out in documents released in relation to the third review of the Extended Fund Facility (EFF) agreement with the IMF in March, that "a Bankruptcy and Insolvency Act was tabled in Parliament in December 2013, "to modernise the procedures and facilitate the rehabilitation of enterprises".

When this column raised the issue in May that five months had passed since the tabling of the Bill with no results, Minister Hylton told the next JSC meeting that the statement was "quite disturbing".

"We don't see that there are any problems or difficulties," he said. "We are engaged in a process, in which we are seeing that, as we go through, there is an opportunity to improve what has been drafted.

"It is a technical process, we are trying to ensure that the process yields the benefits to all the parties, or interests concerned, and we are going about it in a most careful and orderly way," he added.

However, there must be problems somewhere, when the review of such an important economic bill linked to the IMF agreement and based on pre-consultations with major stakeholders has passed eight months with a JSC, and there is still no indication when a report will be tabled.

What is evident is that what the minister referred to as "consultations" with stakeholders, including the Private Sector Organisation of Jamaica (PSOJ), the Institute of Chartered Accountants (ICA), and even its own agencies -- the Office of the Trustee in Bankruptcy and the Financial Services Commission (FSC) -- could not have been thorough as he suggested, as these are the very institutions which have raised issues with the draft Bill.

The PSOJ not only felt that the Bill should not have followed the route of the Barbados Bill, which has had rare success in that country, but also insisted that the word "bankruptcy" should be removed from the title because of its connotations in Jamaica. These decisions should certainly have been taken at the consultative level.

The Government had committed in its IMF documents that the Act, which aims at modernising the procedures and facilitate the rehabilitation of bankrupt enterprises, would be in place by the end of 2013.

The IMF said that the reform of the insolvency system is an important component of its economic support programmes, because of the impact it has on a country's economic and financial system. It is a long-awaited change which is required to be addressed now if the country is to meet its economic targets.

Jamaica's existing law on personal bankruptcy is founded in the Bankruptcy Act of 1880, while the corporate insolvency provisions in the Companies Act 2004 are based on the provisions of the United Kingdom Companies Act of 1948.

Proponents of changes to the law argue that the current legislation is skewed towards punishing the bankrupt, instead of seeking to rehabilitate them. Hopefully, the JSC will use the period of the current parliamentary break to ensure that, as soon as Parliament resumes in September, the report will be ready.

* Parliamentarians are advised to make the best use of the current summer break, as the next session -- the Christmas term -- is looming to be one of its busiest on record.

At least two extremely important new joint select committees are expected to start sitting during the sessions:

* A Joint Select Committee of Parliament has been appointed to review the "Sexual Offences Act". This committee will also review the "Child Care and Protection Act", the "Domestic Violence Act", the "Offences against the Person Act" and the offences and punishment under these Acts, placing special emphasis on the protection of the vulnerable (women, children, the elderly and persons living with disabilities) from violence and abuse.

* The Joint Select Committee of Parliament considering the "Road Traffic Act, 2014" is inviting views and comments from the public on the Bill.

Gordon House has set a deadline of October 29 for written submissions from the public to aid both committee's deliberations. Persons making written submissions may be required to appear before the Committee at short notice to explain their views. Copies of the bills may be downloaded from the http://www.japarliament.gov.jm website.

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