National Intelligence and Security Agency Bill 2023 (Part II)
Truth is threatened by disinformation and hate speech seeking to blur the lines between fact and fiction, between science and conspiracy. The increased concentration of the media industry into the hands of a few, the financial collapse of scores of independent news organizations, and an increase of national laws and regulations that stifle journalists are further expanding censorship and threatening freedom of expression.
UN Secretary-General on World Press Freedom Day
On the occasion of World’s Press Freedom Day observed last Wednesday under the theme “Shaping a Future of Rights: Freedom of Expression as a Driver for All Other Human Rights”, the Heads of Mission of the United States, the United Kingdom, Canada and the European Union issued a joint statement on press freedom in Guyana. They stated, among others, that:
(a) Media freedom is deeply embedded within the freedom of expression and all other human rights; (b) The media plays a pivotal role in society by disseminating facts for public consumption and helping citizens in Guyana stay informed, establish opinions, make informed choices, and participate meaningfully in society;
(c) Media freedom allows for transparency and accountability, important components for Guyana’s management of resources during a time of rapid growth;
(d) All stakeholders, including decision-makers such as the Government and the Opposition, must maintain a mutually respectful relationship with the media in its capacity as the fourth estate and as a vital part of democracy in action;
(e) Granting the media access to public officials and to information should be the norm. Requests for public information should be honored;
(f) The Access to Information Act 2011 should be effectively implemented to empower the media to do their job; (g) Media workers should not be restricted nor have to work under unnecessary duress or risk to their safety in order to have access to information. They should not face abuse, threats, intimidation or personal attacks in the execution of their duties, nor should they be expected to align with any specific idea, person, entity or political party, whether directly or anonymously;
(h) The media’s role is to provide objective and impartial reporting, which is essential to maintaining a healthy democracy and ensuring that all voices are heard;
(i) All employees of the media should be protected and be able to carry out their duties without fear;
(j) The practice of selectiveness in granting access to information or to public officials under the guise of media bias, should be discouraged;
(k) The media, Government, Opposition, and all stakeholders must recognise the roles and responsibilities of the media and its benefits to the people of Guyana; and
(l) All stakeholders are urged to continue supporting media freedom and promoting a culture of open and honest communications in Guyana.
Also last week, Reporters without Borders issued its report on the 2023 World Press Freedom Index in which
Guyana is shown as having dropped 26 points from 34 to 60 in its ranking from among 180 countries surveyed. This is not good news as this latest assessment on Guyana must have been influenced by recent events, especially where journalists and other media employees have been the targets of vicious attacks. The report noted that journalists in Guyana continue to encounter pushback in their work from the Government and supporters of the ruling party, including exclusion from routine press briefings by the administration as well as intimidation tactics. It cited a recent incident where journalists were forced to sit among the public and be verbally intimidated while asking questions. The crowd was largely composed of vocal supporters of the President, and the meeting was more like a rally. The report further stated:
Whether directly attacking the media or encouraging supporters to do so with a wink and a nod, President Ali is putting journalists at risk for simply doing their jobs. President Ali’s administration must take action to ensure all journalists are safe to do their jobs. This includes holding to account party supporters who intimidate members of the press…
This exemplifies a larger issue that the government controls many of the media outlets in the small country and tries to silence those who criticise the administration. There have been no cabinet press briefings since August 2020.
The Guyana Press Association, for its part, had the following to say:
Today, we see renewed efforts by the sitting government to use its leverage in the State Media and its aligned privately-owned media to violate the inalienable right to freedom of association as enshrined in the United Nations Universal Declaration of Human Rights and the Constitution of
over US$70 billion. Increase that for inflation. Add in damage to the economies of our Caribbean and South American neighbours. The bill could rocket up to US$150bn. If Guyana had to pay for that damage, it would destroy our economy which is already fragile from decades of political interference and mismanagement.
Esso clearly does not have the money to cover its liability. The environmental permit requires Esso to provide “environmental liability insurance as is customary in the petroleum industry.” No surprises there. Esso placed an insurance document before the court. Court documents are public. All Guyanese people should read this document. The Applicants’ lawyers raised numerous objections in their submissions of 13th February 2023 including that the document named Egypt not Guyana, was issued by an Esso affiliate not an insurance company, was unsigned, and had already expired on 31st January 2023!
The judge ruled that Esso’s documents did not meet the permit requirements for insurance and therefore Esso was in breach of its permit. He ordered the EPA to issue an Enforcement Notice for Esso to produce the insurance as required by the permit.
Insurance does not always cover all your costs. We all know that insurance people don’t like to pay up. Under Condition 14 of the permit, Esso undertook to provide a parent company guarantee to cover all of Esso’s liabilities under the Liza 1 operations and to indemnify the Government of Guyana and the EPA against all of Esso’s environmental obligations. Esso did not produce the parent company guarantee. The judge ruled that Esso was in breach of the permit. He ordered the EPA to issue an Enforcement Notice for Esso to produce the unlimited parent company guarantee as required by Esso’s environmental permit.
A parent company guarantee from ExxonMobil Corporation, means that ExxonMobil will have to pick up the bill for any environmental damage from Esso’s operations. This is the cost of doing business. It is a cost that Esso agreed to pay when it signed the permit. Mr Routledge has even publicly promised the Guyanese people that there is no limit to what Esso would do to respond to a spill.
As a result of the permit and this judicial decision, the State of Guyana (i.e. the government and people like you and me) will no longer be liable. Can anybody tell me why some members of this government want the EPA to appeal against a decision that is so clearly in the national interest?
There are two other important issues to note in this decision. First, the court rejected “archaic” legal arguments raised by Esso’s counsel that the applicants were busybodies. This ruling is grounded in established law that restricting standing is “inimical to a healthy system of administrative law”. The judge held that the Applicants raised an issue of national significance for the wellbeing of the environment, the citizens and the State and he concluded that, “Every citizen of this land would equally possess standing to make this inquiry.”
Second this decision, which drags the EPA into the twenty-first century and requires it to meet modern standards of transparency and accountability, is solidly based on the text of the Environmental Protection Act and contemporary legal principles. This decision is also fully in keeping with Guyana’s international legal obligations under the Escazu Agreement 2018 to guarantee full and effective implementation of the rights of access to environmental information, public participation in environmental decision-making process and access to justice in environmental matters.
Citizens now have a solid legal decision on standing as well as on access to the information necessary to challenge abuse of public power. Modern judicial review is the rule of law in action. The judge cited the great Indian jurist, Chief Justice Bhagwati that, “but for the vigilance of citizens, society shall perish.” Guyana will not survive the onslaught of the fossil fuel industry, unless citizens are prepared to go to court to protect this country and unless judges are prepared to uphold the law. Judges are the protectors of the law and the Constitution.
In judicial review, a judge must act swiftly. This case was completed in eight months, including time given to the EPA and Esso to file additional affidavits and put additional evidence before the court in order to support their case. The comparatively swift handling of this case is an example for other judges. It is to be hoped that we will now see an end to judges breaching the Time Limit for Judicial Decisions Act and thereby delaying (and denying) justice to conscientious citizens and the nation, in judicial review cases to protect the public interest. The egregious instances of a judge taking a year to deliver a ruling in a public interest judicial review case should no longer be tolerated.
This decision is accessible to all. It is written in plain English not legalese. People should read it. They must understand that His Honour Mr. Justice Kissoon has done what judges are required to do by law, constitution, ancient tradition and modern legal principle. In other words he has put the rule of law above the rule of man.
No doubt there will be some unhappy men. But in carrying out his duty as a judge, His Honour has curbed the abuse of power by a public authority, shored up our fragile democracy, protected our freedom and allowed us to stand up with dignity. It is indeed a victory by the people for the people!
Mr Collins and Mr Whyte were represented by Mr Seenath Jairam SC, Ms Melinda Janki and Mrs Abiola Wong-Inniss; the EPA was represented by Ms Francis Carryl, Ms Shareefah Parks and Ms Niomi Alsopp; Esso was represented by Mr Edward Luckhoo SC, Mr Andrew Pollard SC and Ms Eleanor Luckhoo.