Latest update June 2nd, 2023 12:49 AM
May 15, 2023 News
Justice Kissoon’s ruling…
Kaieteur News – Senior Counsel and former Speaker of the National Assembly, Ralph Ramkarran has chided the government for saying that the High Court was “treading in murky waters” when it recently ordered the Environmental Protection Agency (EPA) to ensure ExxonMobil’s complies with the insurance provisions in its Liza Phase One Environmental Permit.
The EPA has since appealed the case. Writing in his blog, a column which also appeared in the Sunday Stabroek, Ramkarran said the “murky water” comment is uninformed. It was Vice President, Bharrat Jagdeo who made the comment two weeks ago at a Freedom House press briefing, during which he also suggested that the courts have to make predictable decisions. “The comment on Justice Kissoon’s judgment to the effect that the judiciary is treading in murky waters by directing a regulatory agency on how to do its job and setting a timeframe on when it should complete certain orders, is not an informed comment. It contradicts to its core the purpose of public law and the objective of the Judicial Review Act, which is precisely to direct regulatory agencies by issuing public law orders and set timeframes…” Ramkarran said.
In the judgment handed down on May 3, 2023, Justice Sandil Kissoon ruled that Exxon’s affiliate, Esso Exploration and Production Guyana Limited (EEPGL) is in breach of its permit which, in the court’s view, unreservedly calls for unlimited insurance protection in the event of an oil spill. The Judge also issued an Order of Mandamus directing the Environmental Protection Agency (EPA) to have EEPGL produce on or before June 10, 2023, the unlimited liability Parent Company Guarantee Agreement and/or unlimited liability Affiliate Company Guarantee from an insurance company with standing and repute that equates to Grade A Plus. Failure to comply will see the permit being suspended.
During his press conference, the Vice President had said: “we all want to ensure that as a country, in the case of a spill, and hopefully it never happens, that we have adequate resources to cover all of the liabilities associated with that… So we all want this. But we also can’t be shrill or capricious in our dealings, particularly at the level of our regulatory agencies to get that outcome.” Jagdeo said it is critical that the government pursues diligently and professionally in its efforts to get insurance coverage that will meet all the circumstances should there be an adverse event offshore. He also said it is crucial for institutions to act in a manner where decisions are not made on the premise of economic nationalism. Jagdeo also said it is incumbent on the courts to produce judgments that are well reasoned, adding that the EPA’s efforts on securing various forms of insurance in the oil sector should not be overlooked. The Vice President said the regulatory body has been in discussions for over a year now with Exxon to secure a US$2B parent guarantee for the Stabroek Block. He said those discussions concluded recently. He also expressed the view that the judiciary is treading in murky waters by directing a regulatory agency on how to do its job and setting a timeframe on when it should complete certain orders.
Meanwhile, Ramkarran said public authorities dominate public administration worldwide and affect the lives of most citizens in numerous and profound ways. He said there are dozens in Guyana which affect major industries such as mining, petroleum and rice in West Berbice and also everyday activities such as housing, the delivery of water and electricity. Guyana, he said eventually followed the example of many other countries and codified judge-made public law into the Judicial Review Act of 2010. Among the 18 grounds on which section 5 of the Act permits a court to act is “breach of or permission to perform a duty.” ‘Breach of duty’ was the core issue in the EPA case presided over by Justice Kissoon.
Ramkarran said the scrutiny by the courts in cases seeking the public law remedies mentioned such as the EPA matter occur every day. “Citizens rely on the powers of the court to protect their rights against decisions of public authorities. The decisions in many of these cases are appealed by one side or the other,” he added. “The comment on Justice Kissoon’s judgment to the effect that the judiciary is treading in murky waters by directing a regulatory agency on how to do its job and setting a timeframe on when it should complete certain orders, is not an informed comment. It contradicts to its core the purpose of public law and the objective of the Judicial Review Act, which is precisely to direct regulatory agencies by issuing public law orders and set timeframes as indicated below,” the senior counsel noted. He said under section 14 of the Act, where a public authority fails to make a decision, the time for which is not prescribed, a person affected by the delay may apply for judicial review, that is, for one or more of the orders outlined in the EPA case. Additionally, he said Section 15 provides that a public authority is required, if asked in writing by a person adversely affected by one or more of the orders that it has issued, to provide its findings on questions of fact, the evidence on which those findings are based and the reasons for its decision, must do so within 14 days. “This is the extent of the penetrating intrusiveness into the functioning of public authorities that courts are given.
The growing importance of the rights of the citizen is reflected by many factors. But in relation to the issues under discussion, two factors are important to note: 1. The exponential rise in the number of public law and constitutional law cases in Guyana, and; 2. The extension of the locus standi principle thereby enabling members of the public who may be only marginally or indirectly affected by a decision, sometimes by merely being citizens of Guyana, to institute legal proceedings in public law and constitutional cases.”
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