Glenn Lall has jurisdiction to challenge transaction in interest of public - attorney tells court

Glenn Lall has jurisdiction to challenge transaction in interest of public – attorney tells court

Jun 16, 2022 News

Court case over Govt. tax waiver to oil companies…

Kaieteur News – The attorney representing Kaieteur News’ Publisher, Glenn Lall in the case filed against the Government of Guyana over its decision to grant Exxon Mobil and its affiliates, extensive tax waivers is arguing strongly that the businessman and newspaper owner has the right to challenge the concessions in the interest of the public.

Kaieteur News Publisher, Glenn Lall (left) and his lawyer, Mohamed R. Ali.

Attorney-at-law, Mohamed R. Ali noted in his written submission to the High Court in response to the Government’s position on the case that Lall is a businessman and a taxpayer, who commenced these proceedings as a public-spirited citizen of Guyana.
In its initial response to the case, the Government of Guyana through the office of the Attorney General had submitted that Lall has no locus standi to challenge the agreement it has with the oil operator and its partners. The Government said that the transaction falls in the realm of private law and it does not affect Lall personally, hence his reasons for the case, he filed should not stand.
But Lall’s lawyer has since replied in a written submission to Court where he contends that although the newspaper publisher is alleging an infringement of his fundamental rights and freedoms in Article 149 of the Constitution of Guyana, he is clear that his interest in these proceedings is not personal and that he will not likely be directly affected in his individual capacity by the actions of the Minister with responsibility for petroleum and the Petroleum Agreement dated June 27, 2016.
The document submitted to the court outlined that, “The Applicant [Lall] asserts that he has both the capacity and the legal standing to bring these proceedings in his own name in his private capacity for declaratory relief alleging breach of public rights.”
Lall’s attorney also cites a number of cases in which he says shows precedence for his position.
In keeping with the principle established in the case of AG v Dumas [2017] UKPC 12, the lawyer is contending that the court is entitled to entertain public interest litigation provided the litigation is bona fide, arguable with sufficient merit to have a real and not fanciful prospect of success, grounded in a legitimate and concrete public interest.
In another case cited, Ali noted that seeking declarations is the appropriate remedy when matters are brought by public-spirited citizens having a sufficient interest in the matter: “It would, in my view, be a grave lacuna in our system of public law if … even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped,” he said.
As it relates to the issue of whether the matter is one of private law, The general rule is that a public officer may be said to be one who discharges a duty in the performance of which the public is interested…
In this regard, Ali asserts that “…In Guyana the judiciary has set aside a division of the High Court to be called the Constitutional/Administrative Law Division. This division is intended to deal with all cases have a “public law element”, namely those concerning acts and decisions of public officials and authorities and involving the interpretation or application of the Constitution.”
In the case, the lawyer stressed that the applicant submits that the said Minister responsible for petroleum public authorities and did in fact obtain his power to act in relation to the said Petroleum Agreement under the sections of the Petroleum Exploration and Production Act (PEPA).
“The Petroleum Agreement also clearly states that the Minister responsible for petroleum represents the Guyana Government and accordingly, his functions, duties and powers are of a public nature and he has the authority to ensure compliance with the law, making the state culpable under the state action doctrine,” Ali explained in the document.
Furthermore, the lawyer said that Petroleum Agreement regulates the exploitation of petroleum in its natural condition which is vested in the state of Guyana; is signed by a cabinet member on behalf of the Government of Guyana; and is the subject of an Order of the National Assembly of Guyana signed by the Minister responsible for Finance.
He continues that the “the Minister responsible for Petroleum in consultation with the Minister of Finance approved and authorised the tax and royalty provisions outlined in the Agreement. The Petroleum (Exploration and Production) Act No.3 of 1986 Cap 65:04 confers on these ministers’ functions, duties, and powers of a public nature and responsibility to secure implementation of the law.”

Lall’s attorney therefore submits that the Government’s argument that the said Petroleum Agreement between the licensees and the Government of Guyana is in private law is misconceived and erroneous.
He emphasized too that the Minister with responsibility for Petroleum and the Minister with responsibility for Finance are not acting in their private capacity under the Petroleum Agreement as it is therein distinctly stated that petroleum in its natural condition in strata in Guyana is vested in the State.
As it relates to the agreement, Ali contends that both ministers are operating on behalf of the Government of Guyana as public authorities. “This would mean that the tax and royalty provisions in the agreement were made in the exercise of a public function and additionally, it would mean that such provisions have the potential to affect public law rights, obligations and expectations,” he stated.