Dear Editor,
The Hon. Anil Nandlall, Attorney-General and Minister of Legal Affairs (AG) has wisely introduced into the legal landscape of Guyana, forward-looking legislation on judicial review and time limits for judicial decisions. But, unfortunately, last month he said that the courts should make higher costs awards in public interest cases. He claimed that a series of cases had all been struck out as frivolous and vexatious, except for Collins & Whyte v EPA and Esso (the guarantee case). The litigants he named are my clients. Not one of my seven cases challenging illegality in the petroleum sector has been struck out.
In the guarantee case Justice Kissoon found on the evidence before the court that Esso “was engaged in a disingenuous attempt which was calculated to deceive when it sought to dilute its liabilities and settled obligations stipulated and expressed in clear unambiguous terms” in its environmental permit. He also said that the EPA had “relegated itself to state of laxity of enforcement and condonation compounded by a lack of vigilance thereby putting this nation and its people in grave potential danger of calamitous disaster.”
Vanda Radzik and Elizabeth Deane-Hughes challenged the pipeline. The AG said they were ‘obstructionists’. Justice Sewnarine-Beharry disagreed. She said that Ms Radzik and Ms Deane-Hughes ought to be viewed as “public benefactors” because they were seeking to vindicate the rule of law. Her Honour made a finding that the EPA’s decision to grant the permit to Esso was contrary to law and was improper.
Troy Thomas challenged the environmental permits issued to Esso by the EPA. The permits were cut down from over 20 years to 5 years. His second case is known internationally as the biggest climate change case in the world. It is in court.
Justices Barlow, Kissoon and Sewnarine-Beharry all held that the EPA acted illegally. They should all be commended for giving their decisions promptly.
There are 3 other cases. We await a decision from Justice Younge in another challenge to the Liza 1 permit. Ramon Gaskin’s case challenges the petroleum production licence granted by Raphael Trotman for Liza 1. The CJ took 366 days to rule against us. That case is on appeal.
The remaining case is the one that the AG referred to as a ‘significant development’. This case was brought by Sinikka Henry, Sherlina Nageer and Andriska Thorington in January 2022. It challenged the EPA’s modification of the flaring provisions of Esso’s environmental permit. The AG applied to join. We objected. The Hon. Chief Justice (ag) (CJ) refused his application. The CJ heard the case on 12th May 2022. Between August 2022 and July 2023 I wrote 6 letters to the CJ’s registrar asking for a decision. In my sixth letter, I asked that the CJ formally dismiss the case so that it could proceed to the next level as she clearly did not agree with our application. I also wrote to the Chancellor. Finally, on 3rd October 2023 the CJ dismissed the case. I am instructed to appeal.
It is well-established that “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.” [Lord Atkins.] . The law specifies 120 days maximum for a judge to deliver a decision. It is simply wrong and a grave injustice to take more than four months to deliver any judgment.
Instead of criticising public-spirited citizens, the AG should investigate those instances where the judicial system is not delivering justice
The rule of law is our only protection from the arbitrary rule of man. But the rule of law will not survive without courageous citizens, lawyers willing to represent them and judges who have the courage, independence and knowledge to do what is right and just.
Yours sincerely,
Melinda Janki LL.B, BCL (Oxon), LL.M
