Executive authority resides with the President who may opt to delegate functions and portfolios in relation to the exercise of this authority. The Constitution of Guyana makes provision for the President to determine the authority, functions and powers of Ministers of the government.
The authority, functions and powers of Ministers may also be determined by the parliament through legislation. Parliament may provide for Ministers to have certain responsibilities and determine which of those responsibilities may be delegated.
Both the President and the parliament exercise sovereignty on behalf of the people. It is therefore extraordinary that a foreign company coming to operate in Guyana can have the temerity to write into its contract that a Minister may delegate his functions, functions derived from his appointment by the President, to other persons of entity.
Article 6 of the Production Sharing Agreement between ExxonMobil and the government of Guyana states,
“The Minister may, subject to the provisions of the Act or any other law, delegate any person and or any legal entity to exercise and perform any of his functions under this Agreement and anything done by the delegate in pursuance of the delegation shall have the same validity and effect as it would have if done by the Minister.”
The contract also provides for the time being and until further notice is given, for the Guyana Geology and Mines Commission to support the Minister in monitoring the Petroleum Operations carried out by the Contractor, ensuring their compliance with the provisions of this Agreement, the Petroleum Act and the Regulations.
However, it was stated that the Minister “shall” maintain the authority and responsibility for certain functions including , “reviewing any proposed exploration work programme and budgets presented by Contractor under Article 7 and any Appraisal Programme presented by the Contractor under Article 8; reviewing a Development Plan submitted by the Contractor in connection with an application for a Petroleum Production Licence pursuant to section 34 of the Act; ensuring the maintenance and availability for inspection of operating records and reports for Petroleum Operations in accordance with this Agreement; ensuring the accounting procedures specified in Annex C of this Agreement are followed and ensuring compliance with the provisions of this Agreement, the Petroleum Act and the Regulations.”
It is really hard to comprehend anything more arrogant that a foreign firm dictating in its contract what the Minister may do and what the Minister may not do. It would be unheard of in the United States of America for any investor, local or foreign, to seek to suggest what an elected official may do in relation to his public functions.
The stipulations in the Exxon contract indicating what powers may be delegated represents eye- pass to the people of this country. Exxon has no business suggesting what functions the Minister may delegate.
This is the height of imperialism. Not satisfied with taking advantage of Guyana’s weak negotiating experience and having negotiated a one-sided deal for itself, Exxon now has the temerity to want to suggest how the Minister may choose to exercise his executive authority.
These clauses should be erased out of the contract. They represent disrespect to Guyana’s sovereignty. They have no place in any contract. The only persons who can decide on what authority, functions and powers Ministers should have are the President and the parliament. Not Exxon.
It is time for this effrontery to be removed from the contract. This should be done along with the issuing of an unqualified apology to the people of Guyana. Not to government because it seems very comfortable with being insulted.
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