Part 10
The contract confidentiality debate
The petroleum contracts signed with oil companies has featured prominently in public discussions and letters in the print media during this week. In fact, a letter in the Stabroek News on Wednesday by Mr. Ramon Gaskin calling for disclosure of the oil contracts provoked an immediate response by Minister Raphael Trotman who wrote that the Government has received expert opinions and advice against publication. The difference between the two gentlemen is around the language of section 4 of the Petroleum Exploration and Production Act.
Mr. Gaskin is adamant that the language of the law is clear and accused the Government of peddling inaccurate information to the public. For his part, the Minister describes the Act as “somewhat ambiguous” and that it should be interpreted in a manner that prevents publication.
In my opinion, there is no ambiguity and any reluctance to publish has to be planted on a firmer basis than anonymous expert opinions. There appears too, some confusion about the source of section 4 and I have heard it said and repeated by a number of persons that the section derives its origin from a PPP/C amendment in 1997. That is not so. That section existed in its entirety in the original (1986) Act. All that was done in 1997 was to increase the penalty in subsection (4) from $25,000 to $75,000 by way of the Law Revision (Amendment) Act # 6 of 1997.
Persons at every level who ought to know better simply are not reading and they are really incapable of engaging in meaningful discussion or debate over a sector that could easily account for 50% of the country’s GDP over the next few years.
The Petroleum Commission Bill
The Government has published for public comments a Petroleum Commission Bill which will be considered shortly by a Select Committee of the National Assembly. A comparison of this version of the Bill with an earlier version reveals that except for incorporating in the new Bill such procedural matters concerning meetings, etc. of the Board which were previously in a Schedule to the earlier Bill, there are no substantive changes. There are 51 clauses covering areas such as establishment and incorporation of the Petroleum Commission; functions and duties of the Commission; and financing, among others.
The broad function of the Commission is stated in clause 4 as “to monitor and regulate the efficient, safe, effective and environmentally responsible exploration, development and production of petroleum in Guyana. The clause also gives to the Commission the duty to review and recommend to the Minister for approval, amendment or rejection the plans, proposals, reports, analyses, data and any other information submitted by an applicant or operator in support of an application for the granting or renewal of a petroleum prospecting licence or a petroleum production licence. Note however that the Committee has no power when it comes to recommending the granting, suspension or revocation of any petroleum licence.
Significantly, the Minister has the power and the authority to give to the Commission what the Bill describes as general directions on a) policies to be observed and implemented; b) the organisation of the Commission to enable it to discharge its functions, including the size of the establishment, the employment of staff and the terms and conditions of employment; and c) the provision of equipment and use of funds. The Commission is compelled to comply with such directions. It means that the Minister not only chooses who he wants as directors but determines the resources at their disposal to be truly effective.
The Commission will comprise a board of a maximum of eight persons all appointed by the minister including one from civil society or academia and one from the parliamentary opposition. The Board will have a life of one year, strengthening the influence of the Minister and the uncertainty of tenure of board members. The chairperson and the Secretary to the Board will be appointed by the minister, and where a board of directors has not been so appointed, the Minister automatically discharges the functions of the board. The Minister’s control does not end there: he may appoint ex-officio members of the Board and shall approve the payment of remuneration to the members to the Board.
In a new development the Minister can revoke the appointment of any member, inter alia:
“(a) if information relating to the conduct of a member, which could have precluded his or her appointment if it had been made available to the Minister, is brought to the attention of the Minister;
(b) for incompetence;
(c) for misbehavior or misconduct;”
While the right to be heard before disciplinary measures are taken, this is a rather novel provision in public law. It makes one wonder whether there is to be a new culture of governance in the public sector or whether sacking for information carried to the Minister will become the norm.
To be continued.
