H@rd Truths By GHK Lall – Judicial wisdom of a certain kind

Jun 12, 2023 Features / Columnists, News, The GHK Lall Column

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Kaieteur News – Judge Rishi Persaud’s ruling on that specific matter that came before him will be pushed and pulled six ways to Sunday and indefinitely by Guyanese. It will be scrutinised, scoured, and scourged; as well as supported too, but very softly since it is the illustrious judiciary in motion.  As I discerned it, the learned judge had one issue before him: to stay or not to stay. What is interesting, even intriguing, is where he took what was appealed to him for relief.

For sure, I thought that 30 days for Exxon to pony up with the necessaries (complying with Judge Kissoon’s order) was on the stiff and steep side, if not draconian.  Still, if this American supergiant is half as perspicacious, and half as ahead of the curve, as I usually ascribe it to be, then it would have laid some of the pipeline (groundwork) that prepared it to be ready for any development, positive or negative, as such relates to this new and hated monster, full insurance coverage; full coverage, that is, as in unlimited.  It seems that unlimited caused Judge Persaud some uneasiness, lots of anxieties.  Indeed, it does have that open-ended character about it, and could lay low should a real hard blow be delivered by a catastrophic oil spill development.  In some respects, Judge Persaud arrived at the same place, for his own or similar reasons, as the Government side of the National Assembly.  In the people’s house, there was tremendous trouble, and much tortured syntax, relative to what was called the “unknown.”  How to get close to that, what does it represent?  Who can define that, this unknown creature?  In the immaculate judicial house, it was not unknown, but unlimited that prompted much massaging of the mind, and led Judge Persaud where it did.

It is my belief that Judge Persaud’s decision on the stay has its merits, but he should have stopped right there, while he was ahead.  Rule as he had to, and close out the proceedings.  It would have imprinted itself on objective observers, as neutral, possessing the sagacious, and a job well executed.  But when the noble Judge Persaud went into activism mode, I sensed some elements of palpable overreach.  I am thinking of that great American jurist, Justice Antonin Scalia, who could compel any provision of the law to merge with his premeditated objectives or use any interpretation of history to give energy to his visions or draw any conclusions about what is originalist and what is textualist, to deliver a decision to embrace his philosophy.  On occasion, it was ideological, other times personal, still others political.  There were always those trace elements.  I had to say it.

Hence, I find myself reflecting in the aftermath of Judge Persaud’s decision not so much about the stay, but why he saw it fit to venture into the unsettled waters of that US$2 billion money that has had a lengthy shelf life as some sort of guarantee.  Why even go there?  Perhaps in the judge’s rarified way of weighing what came before him, he concluded that it would be helpful to have that sum as collateral, in a place that gives Guyanese confidence, even what makes Exxon look good, like a cooperative partner that is dealing with this country on a principled basis.  As I see it, Guyana is like the Death Row citizen being given a cushion, a space to breathe, and the reassurance of compassionate reception to his pleas for help.  Regarding the 10-day grace period tendered, so that Exxon could scrape around for some loose cash, I thought that that was revealing, smacked of what was a little staged, if not a little on the uncalled-for side.  Exxon had that sum drawn from its petty cash, and only too ready to make express delivery.  Insurance, what insurance?  There is a guarantee in good ole American greenbacks.  So why the cacophony and all this hullabaloo? Let’s do away with that, please, shall we?

With that stroke of judicial pen and what is now judicial scripture, the US$2 billion guarantee is no longer this Loch Ness creature meandering in the political (Vice Presidential) realm of concoction and imagination.  It is not what brother Jagdeo said, or wished for, or waited on; it is now as tangible as a bank manager’s check in hand.  I really do like this judicial sheen introduced to that most controversial of issues (particularly the puny sum), and the lengths to which Judge Persaud went to squeeze it, almost sideways, into his ruling.  My only hang-up is why he felt it necessary to go into that minefield.  The hang-up is causing a hangover.  I close with this titillating inquiry: is the full parent company guarantee now capped at US$2 billion?  We are afraid of “unlimited” but most comfortable with the limit of US$2 billion.  And one more for the road: so, has “unlimited” now found a judicial nursing home in the princely amount of US$2 billion?  As Winston Churchill would have said the unknown about the unlimited has led to the unusual, if not the unholy.

(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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• complying with Judge Kissoon’s order, groundwork, Judge Persaud’, Judge Rishi Persaud’s

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