Senior Counsel Ralph Ramkarran has described as uninformed the statement by the government that the landmark decision by Justice Sandil Kissoon on ExxonMobil’s insurance was “treading in murky waters”.
In his column in the last Sunday Stabroek on the decision, Ramkarran said: “The comment on Justice Kissoon’s judgment to the effect that the judiciary is treading in murky waters by directing a regulatory agency on how to do its job and setting a timeframe on when it should complete certain orders, is not an informed comment. It contradicts to its core the purpose of public law and the objective of the Judicial Review Act, which is precisely to direct regulatory agencies by issuing public law orders and setting timeframes as indicated below”.
The statement had been made at a press conference last week by Vice President Bharrat Jagdeo. In his column last Sunday, Ramkarran did not name Jagdeo but argued against the contention that the judge was treading in murky waters.
Ramkarran said that under section 14 of the Judicial Review Act, where a public authority fails to make a decision, the time for which is not prescribed, a person affected by the delay may apply for judicial review, that is, for one or more of the orders outlined above, as in the Environmental Protection Agency (EPA) case.
Ramkarran said that Section 15 provides that a public authority is required, if asked in writing by a person adversely affected by one or more of the orders that it has issued, to provide its findings on questions of fact, the evidence on which those findings are based and the reasons for its decision and must do so within 14 days.
“This is the extent of the penetrating intrusiveness into the functioning of public authorities that courts are given”, Ramkarran noted.
He said that the growing importance of the rights of the citizen is reflected by many factors. But in relation to the issues under discussion, two factors are important to note, he said. He cited the exponential rise in the number of public law and constitutional law cases in Guyana and the extension of the locus standi principle thereby enabling members of the public who may be only marginally or indirectly affected by a decision, sometimes by merely being citizens of Guyana, to institute legal proceedings in public law and constitutional cases.
Ramkarran pointed out that public authorities dominate public administration worldwide and affect the lives of most citizens in numerous and profound ways. He said that Guyana eventually followed the example of many other countries and codified judge-made public law into the Judicial Review Act of 2010. Among the 18 grounds on which section 5 of the Act permits a court to act is “breach of or permission to perform a duty.” ‘Breach of duty’ was the core issue in the EPA case presided over by Justice Kissoon.
Upon the decision being given, Ramkarran noted that the Government, not a party to the case, criticised it and announced that it would appeal. This he said was an unhealthy merger of the Government’s interests with that of an independent public authority. Ramkarran also argued that the EPA has an untrammeled right of appeal, and to ask the court of appeal to suspend the high court’s decision pending the hearing and determination of the appeal.
“The EPA is exercising a right provided by law and that exercise should be respected. Today, the scrutiny by the courts in cases seeking the public law remedies mentioned above, occur every day. Citizens rely on the powers of the court to protect their rights against decisions of public authorities. The decisions in many of these cases are appealed by one side or the other”, he noted.
At his press conference last week, Jagdeo said that he believes that regulatory agencies should not be constricted in the execution of their work.
“I think it is treading on murky waters when you start directing a regulatory agency as to how to do its own job and give them a timeframe to get it done. You cannot supplant yourself and know what they face in that. Our courts have to make predictable decisions, not in favour of or against the government, well-reasoned. EPA has to be able to justify everything it does without the politicians,” Jagdeo said.
Justice Kissoon, in his ruling in the action brought against the EPA to enforce the liability clause in the permits issued to ExxonMobil Guyana for its offshore oil operations, described the EPA as “submissive.” He said it had abdicated its responsibilities “… thereby putting this nation and its people in grave potential danger of calamitous disaster.”
The judge bluntly said that the circumstances giving rise to the action disclosed the existence of an “egregious state of affairs that has engulfed the Environmental Protection Agency in a quagmire of its own making.”
“It has abdicated the exclusive statutory responsibilities entrusted to it by Parliament under the Environmental Protection Act 1996 and the Environmental Protection Regulations 2000 to ensure due compliance by Esso Exploration and Production Guyana Limited [EEPGL].”
