The verdict in the conflict surrounding the Telecommunications Authority of Suriname (TAS) raises broader legal questions about the position of directors who continue to function after the expiry of their legal term of appointment. Decisions they make, agreements they sign and financial commitments they undertake may be challenged under certain circumstances. Lawyer Serena Essed and lawyer Jennifer van Dijk-Silos point out in separate interviews the True Time on the risks that arise when the government does not provide clarity on appointments, powers and contractual agreements in a timely manner.
Text Ivan Cairo
Image Jason Pinas
Van Dijk-Silos states that the judgment also has significance for other parastatal institutions and government companies. She believes that the government should critically examine agreements between directors and test them against legal provisions. Essed emphasizes that the summary judgment is provisional in nature and the legal consequences must be assessed on a case-by-case basis.
“The government must learn to act in accordance with the law and do what it has to do and not to let things go because it thinks about coalition partners”
Jennifer van Dijk-Silos
Legal validity
An important question is what happens to decisions and agreements that a director has signed after his statutory term of appointment has expired. Van Dijk-Silos states that such actions can be legally challenged and even declared invalid. However, according to her, this does not mean that all decisions automatically lose their legal force.
Essed endorses this nuance: “It cannot therefore be concluded in a general sense that all actions taken after the expiry of an appointment period are without legal effect.”
It states that legal validity must be assessed on the basis of the applicable law, the nature of the actions and the circumstances under which they were performed. This includes legal certainty, continuity of management and protection of third parties who have acted in good faith.
Van Dijk-Silos points out that this protection is not unlimited. Anyone who knew or reasonably should have known that a director may no longer be authorized cannot simply rely on good faith. “With all the commotion surrounding TAS, you would not be able to find a single third party in good faith,” she says.
According to her, due to the extensive publicity surrounding the conflict, it is now common knowledge that there was uncertainty about the powers of the TAS director. According to her, whether previously taken decisions are actually invalid will ultimately have to be assessed by the judge.
Appointment and agreement
Both lawyers pay attention to the distinction between a legal appointment and the agreement in which the employment conditions of a director are laid down. Van Dijk-Silos endorses the distinction that the summary proceedings judge made in the TAS case.
She believes that it is legally clearer to speak of an agreement about employment conditions in this case than of an employment contract. She explains: “The law says: ‘the employment conditions are regulated by agreement’.” After all, the TAS Act regulates the appointment procedure and stipulates that the employment conditions are determined by agreement.
According to Van Dijk-Silos, agreements must be prevented from allowing a longer management period than the law allows. It must also be checked whether they have been closed by the competent official. She points out that at TAS the minister is responsible for the employment conditions of the director and that, in her opinion, the chairman of the supervisory board was not authorized to enter into the agreement in question.
Essed emphasizes that the relationship between a legal appointment and an employment contract must always be assessed on the basis of the specific legislation and circumstances.
Government failed
Van Dijk-Silos is critical of the government’s actions in the TAS issue. According to her, clarity should have been provided much earlier about the expiry of the appointment term of director Wendy Jap-A-Joe.
According to the government, if the government allows someone to continue functioning after the expiry of their term, that person may have legitimate confidence that continuation is permitted under the same conditions. “The government must learn to act in accordance with the law and do what it has to do and not to let things go because it thinks about coalition partners.”
She also believes that a departing director should be given sufficient opportunity to properly transfer the duties. The lawyer does not think it is correct that the supervisory board reported a day in advance that it would have to transfer the following day.
Jap-A-Joe should have been given sufficient time to prepare the transfer. At the same time, Van Dijk-Silos comments on Jap-A-Joe’s actions towards the supervisory board. She refers to publications about failure to provide information to supervisors.
Essed emphasizes that good governance not only requires that powers are exercised within legal limits, but also that action is taken in a timely manner. “It is ultimately in the interest of both the government and society that there is clarity about this.”
Other state-owned enterprises
Van Dijk-Silos sees the TAS judgment as a reason to examine the administrative and contractual relationships at other government institutions. She specifically mentions the EBS and Grassalco and adds that agreements must be evaluated to determine whether appointment terms and powers correspond with the applicable legislation.
She hopes that the ruling will contribute to an end to administrative abuses and calls on the government, in particular the president, to take actual action. “I really hope that the government and especially the president will take the guts to act.”
“It is ultimately in the interest of both the government and society that there is clarity about this”
Serena Essed
Essed is more cautious about the meaning of the verdict for other institutions. According to her, a summary judgment decision has a provisional character and cannot simply be applied to other situations. However, she does advocate periodic assessment of arrangements regarding appointments, powers, employment relations and succession.
Both lawyers believe that more clarity in these areas can contribute to preventing legal disputes and strengthening legal certainty and administrative continuity.
