The government is ‘hard ears’ and stubborn

Mar 25, 2023 Features / Columnists, Peeping Tom

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Kaieteur News – There has never been a more transparent conflict of interest than that which exists in the Environmental Assessment Board. A group of environmentalists and civil society organizations have established more than a compelling case of such conflicts of interest in relation to the Board and particularly in relation to the consideration of the gas-to-energy plant and Wales.

If those in a conflict of interest were to recuse themselves from the hearings, the Board would not have a quorum. As such, it behooves the government to reconstitute the Board so that there is no potential conflicts of interest that would allow the Board to carry out its work and to avoid its decisions being overturned by the courts because of the conflicts of interests.

The government has been written to in this matter. But it has failed to act and in fact, as this newspaper has reported, the new and conflicted board has met on the same project, and has done so without anyone recusing himself from the hearings.

It is a tragic development, one which shows that the PPPC government is ‘unreceptive to public concerns that are at odds with its own thinking and bent on having its way. It also raises concerns about good governance under the present government.

Guyanese must not get confused between economic development and good governance. You can have economic development with the worst system of governance. In fact, some of the very countries which are used as models of economic development – such as Singapore – have enjoyed economic development but have done so under regimes that did not practice good governance at all. Chile had strong economic growth when it was ruled by the military dictatorship.

But those concerned about the actual and potential conflicts of interest in the workings of the Environmental Assessment Board need not worry. It is the government who should be worried because in its stubbornness to correct its flawed appointments, it has overlooked an important element.

Conflict of interest is a legal concept. And on the basis of this concept, the courts will likely overturn any decision made by any person or persons who are in a conflicted position.

The following is a recap of a previous discussion, in this column, concerning conflicts of interest: The litmus test of a conflict of interest was outlined in the historic ‘Pinochet’ case before the House of Lords. Some background is important in understanding the principle.
In 1973, and with the support of the United States, Augusto Pinochet, a Chilean general, toppled the government of Salvador Allende. This commenced one of the most brutal reigns. Thousands of people were tortured and more than 3,000 disappeared during Pinochet’s bloody rule.

After he retired, some of his victims brought proceedings against him in a Spanish Court. Far away in Chile, the general and former President could not have been worried. No former Head of State had ever been convicted on the basis of the principle of universal jurisdiction, which allowed a person to be convicted in a foreign state for abuses in that person’s home state.

In 1998, Pinochet was on a private visit to England for medical treatment. Amnesty International, a global human rights body, got wind of the visit. Amnesty International had for decades been highlighting and condemning human rights violations in Chile during the rule of Pinochet.

Upon learning of Pinochet’s proposed visit, it immediately sent out a missive to all European governments reminding them of their obligation to arrest Pinochet for violations of the Convention on Torture. Eventually, a Spanish judge issued an arrest warrant for Pinochet.

Pinochet was arrested and held in a London hospital where he was seeking medical attention. He challenged his arrest and was successful in having the initial warrant quashed.

A second warrant was also quashed, but this decision was stayed, allowing for the authorities to challenge the quashing before the House of Lords. Amnesty International joined the case at that stage.

Pinochet’s bid for freedom rested on his claim of immunity as a former Head of State. The House of Lords allowed the appeal against the quashing of the second warrant, which meant that Pinochet was still under arrest and awaiting an extradition hearing to stand trial in Spain.

It was later brought to the attention of Pinochet’s legal team that one of the judges was linked to a charity which had raised funds for Amnesty International, and that the said judge’s wife was also an administrative staff with Amnesty International.
Pinochet therefore appealed the decision of the House of Lords on the grounds that its decision was tainted with bias because of this conflict of interest.

Pinochet, through his legal team, argued that the relationship between the judge and Amnesty International “gave rise to a reasonable apprehension or suspicion of bias”. The new panel of judges in their decision held that what was being argued was not actual bias, but the appearance of bias.

This today has become the litmus test of conflict of interest – not only actual bias but the appearance or mere suspicion of bias. The Lords held that the judge had an ‘interest’, which must lead to his disqualification.

The case in effect turned on the mere appearance of bias which was sufficient to taint the first hearing. There was no need to establish that there was any actual bias. The mere appearance or likelihood of bias was sufficient to establish a conflict of interest. This has become the litmus test for conflict of interest.

Just recently. the CCJ held that a member of an administrative tribunal should have recused himself from a case involving a relative of his. So at both the level of international and municipal law, the principle of a conflict of interest applies.

Any decision therefore by the Environmental Assessment Bureau which is tainted with a mere appearance of bias is likely to be overturned by the court upon a legal challenge. And if this happens it will freeze the moving ahead with the gas-to- shore project.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)

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• Board, Environmental Assessment Board, environmentalists, Government, Peeping Tom

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