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President Irfaan Ali should send the AG [Anil Nandlal] packing! So says the Alliance For Change (AFC) in a blistering statement issued yesterday.
The party has expressed its disquiet with the Attorney General’s (AG) behaviour of using the media and issuing press statements to assail members of the judiciary, who are also part of his fraternity. This is “more than all of his predecessors combined since Independence,” the party warned.
The AG recently assailed Justice Gino Persaud for his ruling in a case involving American oil giant ConocoPhillips, Venezuela’s state-owned PDVSA, and threatened that “a complaint to the Judicial Service Commission remains an option.”
In his latest outburst, Nandlall has doubled down on how right he was, and how wrong Persaud and now Stabroek News were when they held and supported respectively that his advocacy was “opportunistic political arguments best suited to the hustings of an elections campaign.”
The AFC calls out the AG for behaviours considered unprincipled, misplacement of the AG’s priority, and the use of some ad terrorem argument grounded on some implausible unheard of public policy to pressure a Judge not to grant recognition to and enforcement power to an arbitral award.
Delving into the issue that caused the AG’s outrage the AFC recalls the case was about the recognition and enforcement of overseas judgements here in Guyana. “ConocoPhillips, an American oil company, had its oil assets in Venezuela seized and nationalised by the Venezuelan Government. It then, in an Arbitration in USA got a massive judgement against Venezuela for wrongful deprivation of its property. Guyana has monies for Venezuela under the Petro Caribe deal.
“What ConocoPhillips applied for here in our local court, is the recognition of that award and its enforcement by the Government of Guyana to pay to ConocoPhillips the monies Guyana has for Venezuela, rather than Guyana handing over that money to Venezuela. Under our existing law, ConocoPhillips can apply to our High Court to do just that.”
The AG’s main criticism with the ruling is that given Guyana and Venezuela have border controversy Guyans should not pay the money it has for Venezuela over to ConocoPhillips.
In his submissions the AG contended if the Judge only order Guyana should pay, then the Judge would be behaving offensive, unpatriotic, and anti-national. The Judge found this objectionable and ruled that the award must be recognised and enforced here in Guyana. The AFC asserts the court has an overarching responsibility to honour the Rule of Law which Justice Gino Persaud based his judgement on.
Nandlall’s argument exposes a dangerous and alarming behaviour of the governing People’s Progressive Party attacking the judiciary and its members when the processes and/or decisions are not in their favour.
As attorney general and minister of legal affairs, Nandlall’s responsibilities also include advising Government on the law and ensuring adherence, irrespective of final outcome.
Taking a swipe at the AG’s behaviours, the AFC says that “both at the policy level and legal level the AG has been novitiate. In these matters of such grave and great importance, he seems not to know his legal moorings; nor any geo-political moorings he should have. Nor does he appreciate that in this instance that silence was golden. Instead, he expressed himself in his submissions, conditionally, that the Judge will be offensive, unpatriotic and anti-nationalist…. at para 69 to 71.”
See the AFC’s full statement below.
RELEASE – AUGUST 4, 2024
AG ASSAILING JUDGE AND PRESS
The Alliance For Change has noted that the Attorney General has once again released another Press Statement, which to date is more than all of his predecessors combined since Independence.
In his latest outburst the chief legal advisor to the PPP Government doubles down on how right he was, and how wrong Justice Gino Persaud and now Stabroek News were when they held and supported respectively that his advocacy was “opportunistic political arguments best suited to the hustings of an elections campaign.”
The AG should be advised to be more respectful to both Judge and the Press, especially the latter, which brings ink by the barrels and is intended to stand as the “fourth estate” in a normal democracy.
The AG has misplaced his priority completely. How could it be good public policy for him to advocate that it is just and proper to deny an American company (a judgement creditor), which seeks in accordance with Guyana’s laws, to get recognized and enforced an arbitral award it won outside Guyana? Merely a week ago this very AG was espousing the need for and benefits of a modern Arbitration Act and Mutual Enforcement of Judgements.
The AFC finds it unprincipled that the AG of Guyana is going to use an ad terrorem argument grounded on some implausible unheard of public policy to pressure a Judge not to grant recognition to and enforcement power to an arbitral award.
The AG then misguidedly conflates public policy with the public interest. A public policy is a course of action based on some declared or respected principle, an institutionalized guideline or regulatory measure. Whereas, the public interest constitutes the general welfare or well-being of the public of Guyana. There can be a public policy which is not compatible with the public interest.
But even if he is forgiven for this transgression in mischaracterizing the two concepts as synonymous, he must know that the greatest public policy or public interest is the adherence to the Rule of Law. To override that – the Rule of Law – for the false pretense that Venezuela may invade Guyana or damage our national security, was unspeakably disgraceful.
The AFC is reminded of this same AG arguing in the CCJ that a Suriname company was not entitled to a $6 m (US) award from Guyana because of the majority APNU and AFC Opposition not supporting a certain amendment in the National Assembly. Short shrift was put to that ill-conceived advocacy when the Court ruled that inability to pass the necessary amendment did not absolve the State from liability for the breach by Guyana. The State was indivisible for the purposes of liability and had an overarching responsibility to honour it’s treaty obligation.
Similarly, the CCJ will rightly rule that Guyana has an overarching responsibility to honour the Rule of Law which Justice Gino Persaud based his judgement on.
The AFC is tempted to observe with the mildest measure of mischief, that being an Attorney General is not a guarantee of comprehension of the law nor public policy nor the public interest. None is infallible.
Both at the policy level and legal level the AG has been novitiate. In these matters of such grave and great importance, he seems not to know his legal moorings; nor any geo-political moorings he should have. Nor does he appreciate that in this instance that silence was golden. Instead he expressed himself in his submissions, conditionally, that the Judge will be offensive, unpatriotic and anti-nationalist…. at para 69 to 71.
For the benefit of the Guyanese population, the case wass about the recognition and enforcement of overseas judgements here in Guyana. ConocoPhillips, an American oil company, had its oil assets in Venezuela seized and nationalised by the Venezuelan Government. It then, in an Arbitration in USA got a massive judgement against Venezuela for wrongful deprivation of its property. Guyana has monies for Venezuela under the Petro Caribe deal. What ConocoPhillips applied for here in our local court, is the recognition of that award and its enforcement by the Government of Guyana to pay to ConocoPhillips the monies Guyana has for Venezuela, rather than Guyana handing over that money to Venezuela. Under our existing law, ConocoPhillips can apply to our High Court to do just that. There is a provision in the law, however, which spells out that Guyana can object on the ground that there is a public policy why Guyana must not pay ConocoPhillips. The AG objected on the ground that Guyana and Venezuela have border problems and so should not pay the monies it has for Venezuela over to ConocoPhillips. In his submissions to the judge, AG said if the Judge only order that Guyana should pay, then the Judge would be behaving offensive, unpatriotic, and anti national. The Judge found this objectionable and ruled that the award must be recognised and enforced here in Guyana.
President Irfaan Ally should send the AG packing!
