Govt. is not above the law; must act in the best interest of the people and not foreign companies – Int’l Lawyer Melinda Janki tells Attorney General

Apr 10, 2024 ExxonMobil, News, Oil & Gas

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Kaieteur News – The government of Guyana is not above the law and must act in the best interest of its citizens rather than foreign companies, International Lawyer and renowned climate activist, Melinda Janki has said.

See full statement below from Janki:

The statements by the Attorney General Anil Nandlall as reported in the Kaieteur News article on 9 th April 2024 entitled “Govt. must decide what protection Guyana must have from an oil spill not the Court – AG” are a threat to the rule of law.

The powers of government (i.e., the executive comprising the President and ministers) are limited by the Constitution, by statute and by the common law.  The government has a duty to uphold the rule of law.

The government is not the State. Contrary to the assertions of the Attorney-General the government is not even “in charge of the management of the State.” The members of government are servants not managers. They are accountable to the people for their actions. The government has a legal duty to act in the best interests of Guyana as a sovereign State and the people of Guyana who make up the State. The resources of the State belong to the people not to the government.  The government is  legally required to put the interests of the people above the interests of foreign corporations such as Exxon Mobil.

Under the doctrine of separation of powers, the Judiciary interprets the law.  The rule of law requires the government to respect the doctrine of separation of powers and not seek to usurp the functions of the judiciary. The rule of law requires the government to respect and obey court judgements.

The Judiciary decides what are the legal rights and duties of government, private sector entities and individuals. The Judiciary have a constitutional duty to protect the people of Guyana from abuse of power by the government.

On 3^rd May 2023 in an internationally acclaimed decision, his Honour Justice Sandil Kissoon, after hearing full arguments made the following declaratory order:

“A Declaration is hereby granted that Condition 14 of the Environmental Permit (Renewed) No. 20160705-EEDPF issued on the 31/05/22, imposes on Esso Exploration and Production Guyana Limited, unlimited and uncapped liability for all costs associated with clean up, restoration and compensation for all damages caused by any discharge of any contaminant arising from its exploration, development and petroleum production activities within the Stabroek Block, Offshore Guyana.”

The environmental permit is a legal document. Esso signed it and agreed to its terms. It is for the Judiciary, not the government, to determine the legal meaning of that environmental permit.

In plain English the judge said that if there is an oil spill from Esso’s operations then Esso is liable for all the costs to clean up the oil and to restore the environment as well as all the costs of compensating those who are affected. There is no limit on Esso’s liability and there is no limit on the parent company guarantee. If Esso does not have the money to meet its liabilities, then the people of Guyana will have to pay.

His honour Justice Kissoon also made the following order:

“An Order of Mandamus is hereby granted directed to the Environmental Protection Agency (EPA) to issue an Enforcement Notice pursuant to Section 26(1) and (2) of the Environmental Protection Act, on or before 9/05/23, directed to Esso Exploration and Production Guyana Limited to perform its obligations under Condition 14:10 and 14:05 of the Environmental Permit ( Renewed) No. 206 607 05 issued on the 31/05/22 and to provide, within 30 days thereafter, on or before 10/06/23, the unlimited liability Parent Company Guarantee Agreement and/or unlimited liability Affiliate Company Guarantee to indemnify and keep indemnified the Government of Guyana and the Agency against all such environmental obligations of Esso and its Co-venturers within the Stabroek block, together with Environmental liability insurance as is customary in international petroleum industry in accordance with the Conditions at 14:05 (i), (ii), (iii), (iv), (v) and (vi) from an insurance company standing and repute that equates to Grade A Plus as envisaged by Condition 14:05, failing which the Environmental Permit (Renewed) No, 206 607 05 dated 31/05/22 stands suspended.”

In simple  English the Court as the arbiter in these matters said that Esso had to produce environmental liability insurance that is customary in international petroleum operations. In other words, Esso has to provide the same insurance in Guyana as oil companies produce wherever they operate. Citizens may remember that one of the documents placed before the judge by Esso was insurance referring to Egypt.

The Attorney-General is an extremely capable and well-regarded Attorney-at-Law and it does him no credit to talk about ‘unlimited insurance’ when the entire population knows that there is no such thing.

In clear English the order requires Esso to comply with condition 14 and provide a parent company guarantee to indemnify Guyana and the Agency.  In other words, if Esso does not have the money, then Exxon Mobil Corporation has to step in and pay for the damage caused by Esso’s petroleum operations.

The judge also said that if Esso did not comply with its legal obligations, then its permit would be suspended. As the entire nation is now aware, production would only stop if, and only if, Esso breaches its legal obligations.

As citizens are also aware, on 8^th June 2023 his Honour Justice of Appeal Rishi Persaud granted a stay on condition that Esso lodged a US$2billion guarantee. In effect Esso does not have to provide any insurance or the parent company guarantee. So, Guyana could have unlimited liability for harm caused by Esso’s petroleum operations. On 7^th July 2023 Messrs. Collins and Whyte  applied for the Court of Appeal to vary or discharge that stay. The Court of Appeal has not heard that application as yet.

Esso and the Agency have refused to provide a copy of the US$2billion guarantee allegedly provided to the Agency by Esso. On 19th February 2024, Persaud JA decided that he did not have jurisdiction to order Esso and/or the Agency to provide the court with a copy of that same US$2bn guarantee that he had ordered Esso to lodge. Messrs. Collins and Whyte have applied to the full bench of the Court of Appeal for Persaud JA’s order to be varied or discharged. There has been no response as yet.

Esso and the EPA lodged their appeals in May 2023. Messrs Collins and Whyte  applied for an urgent hearing of those appeals. Up to now the Court of Appeal has not set a date to hear those appeals.

It is well known that justice delayed is justice denied. Justice Kissoon is to be commended for the speed with which he handled this matter. The rule of law is threatened when judges do not deliver their decisions swiftly. This is especially serious in cases of judicial review where public interest litigants seek to protect the nation from unlawful actions by government and regulatory bodies such as the Agency.  Every day’s delay is a day in which the judiciary is allowing potentially unlawful conduct to continue to the detriment of the State and its people.

As established decades ago, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of men.” And women.

It is contrary to the rule of law and the public interest that eleven months have elapsed without the Court of Appeal determining the appeals and also that the Court has not heard the  applications on the stay. More generally, it undermines the rule of law when in judicial review cases certain judges have been unable to render their decisions within the time limits set by law.

As the two most senior judges in country, the Chancellor and the Chief Justice ought to ensure that the judicial system delivers justice in a timely, independent and impartial manner that merits public trust. It is their responsibility to demand and obtain the resources necessary to do so or to step down.

The rule of law is undermined when there is, or appears to be, interference with the judiciary. Despite public reports that the President assured John Hess that Persaud JA would grant the stay, the Attorney-General, who is constitutionally the principal legal adviser to the President, has said nothing and has apparently taken no action to clear the President’s name or uphold the rule of law.

The rule of law requires governments to treat all citizens equally. The rule of law is a guarantee of freedom from oppressive and arbitrary government but it has to be used and protected by citizens.

The Attorney-General’s comment that  “every Tom, Dick and Harrylall (can) file cases, (although) they have no direct interest in the oil and gas sector…,” is disrespectful to public spirited citizens who are doing their public duty by keeping the government in check. The rule of law is under threat in Guyana and more citizens had better stand up to  protect their freedom.

Note:  Messrs Collins and Whyte are represented by Seenath Jairam, Melinda Janki and Abiola Wong-Inniss.

Melinda Janki is an Attorney-at-Law.  She is the recipient of the prestigious Commonwealth Lawyers Conference Rule of Law Award 2023 for her work to uphold the rule of law in Guyana and internationally.  She has worked for oil supermajors.

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• Attorney General, Attorney General Anil Nandlall, companies, International Lawyer, Melinda Janki

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