Minister not wrong in his interpretation of Act as it relates to disclosure of ExxonMobil contract

Dear Editor,

A few weeks ago, I attended a presentation at Moray House by our prolific Chris Ram. The highlight was  a notable broadside against the Minister of Natural Resources, Mr. Raphael Trotman who he said needed to learn to read. I should be grateful if you allow me to deploy this basic standard to the discourse raging in your columns and elsewhere daily.

The first deals with the interpretation of the law governing oil exploration (Act 1986).

Mr. Anil Nandlall was the first to quote the section upon which the representation that the minister was incorrect in claiming that he could not disclose the contract relied. In his letter dated September 12, 2017 he said “Firstly, it ought to be excruciatingly plain that (2) is not only an exception to (1) and therefore, authorizes the disclosure of information prohibited by (1)”.

This was with reference to the following sections of the Act:

“4(1) Subject to subsection (2), no information furnished, or information in a report submitted, pursuant to this Act by a licensee shall be disclosed to any person who is not a Minister, a public officer or an employee of the Guyana and Mines Commission except with the consent of the licensee.”

He then concludes: “It ought to be reasonably clear that Section 4(1) contains no prohibition against the disclosure of the contract in question. This Section simply prohibits information, which may have been supplied by the licensee, whom I presume, in this instance, to be either ExxonMobil or one of its affiliates…”

BRS (basic reading skills) would assign value to the word “or” in “or information furnished”. BRS would inform us that either is forbidden, not one. So “no information furnished” stands on its own as does “information in a report”. It is apparent that the conclusion drawn is anything but “reasonably clear” and may be quite simply erroneous. (The only reason I use “may” is because of a caveat that appears in Section 4(2) which he also quoted – but did not rely on for his conclusion – and which may just happen to rescue his logic. I will deal with this shortly). It is okay for Mr. Nandlall to make a mistake in his basic interpretation here. We all do. But the fact that so many have parroted this conclusion without question is frightening. No one but no one questioned the argument.

In order to be able to further test that conclusion relying upon BRS, I would need to point out a legal requirement for preparation of a contract. Normally, the parties are required to submit their details e.g. name, address, kind of company, where incorporated, etc. in order that the identity of the contractee could be properly established. I believe these details are called information and would be regarded as such by the law. In fact the Act itself refers to these details as information (Vide Section 15(1)(b)). (b): “if the applicant, or any of the applicants, is a body corporate, such information as may be specified in the notice to enable the Minister to ascertain to what extent the controlling power (whether directly or indirectly) in the direction of the affairs of the body corporate is vested in a corporation, or an individual or individuals, resident outside Guyana.” Therefore, any law which precludes information from being disclosed should catch these details along with any other kind of information.

“Information” cannot be limited to items such as reports. Now, if these details cannot be disclosed without permission, what do we mean by the contract could be disclosed? What would be left to give meaning to disclosure of the contract?

The minister therefore is precluded from disclosing the name and the details of any contractee exploring for oil unless the party gives permission. This would suggest the motive for the previous government not disclosing the CGX exploring in Guyana’s waters until Suriname put them out. Otherwise, we should ask whether there was another reason.

Now to the exception. Section 4(2) provides that “Any person who discloses information in contravention of this section shall, on summary conviction, be liable to a fine of seventy-five thousand dollars and imprisonment for three years” but makes several exceptions including one at 2(g) that reads as follows “for, or in connection with, any matter or purpose specified in a petroleum agreement.”

When one reads what is prohibited with what is excepted from the prohibition, even using Mr. Nandlall’s letter alone as a basis (without consulting the Act), there are indeed some things that become “excruciatingly clear” but not Mr. Nandlall’s conclusions. They are as follows:

  1. The length of the (explicit) list of exceptions challenges the list of what is forbidden.
  2. As the list of exceptions is long, only a genius can determine the residue of threat remaining to give effect to 4(2). As the section would be meaningless if the threat is extinguished by the exceptions.
  3. Exceptions number 4(2)c and 4(2)g are so wide that they compete with what is forbidden to the point where it is guaranteed to make lawyers a lot of money for a lengthy trial while the defendant is trembling with the prospect of imprisonment for 3 years hanging over his head. To compound the problem, the word “information” occurs 31 times referring to various kinds of details.
  4. The drafting is poor. The fact that it is in print does not make it perfect. But we shouldn’t be surprised. Confusion in the drafting probably is no accident when one considers the strategies of big oil.

Nothing is as clear as those who support this interpretation want to contend and there is enough confusion to make a wise person refrain from disclosing anything whatsoever unless given permission. It may be a convenient foil for the minister but that does not mean that he is wrong in his interpretation of Act 3 of 1986.

The second issue is Mr. Nandlall’s letter published in SN of 29th October in which he states that “When one examines the intention of the framers of the Constitution, which was to create a bi-partisan mechanism to produce a chairman of GECOM, no rational mind would be unclear when the proviso can be activated. It can only be activated when no list has been submitted by the Leader of the Opposition. Once a list has been submitted, this proviso has no applicability. Any other interpretation would make a mockery of the letter but moreover, the spirit of the Constitution because every President would then be free to reject a list submitted to him by the Leader of the Opposition and appoint a person of his own choice, rendering the very constitutional provision otiose, superfluous and nugatory. President Carter and those who coined the Carter Formula were not that naïve.” (emphasis mine)

According to that statement, I am not rational, as I find it a strange conclusion based upon deployment of BRS. That would mean that the phrase “fails to submit a list as provided for” means exactly the same as “fails to submit a list” rendering the words “as provided for” superfluous or more correctly “otiose, superfluous and nugatory” in his language.

Mr. Nandlall says “The Leader of the Opposition submitted not 6 but 18 such names to the President. To his credit, the Leader of the Opposition did not confine the 18 names submitted to his subjective judgement. He engaged several major organisations in this country in a consultative process which produced those names.” He misses entirely the implication of his own words staring at him which is that the two leaders embarked upon an unauthorized journey. To the linguistically challenged, Mr. Nandlall’s flowing elegance, his facility with multi-syllables confers an aura of cogency and unassailability to his argument. Apparently,  he has managed to hypnotize many.

Mr. Nandlall shows great respect for the Carter formula: “President Carter and those who coined the Carter Formula were not that naïve.”  Perhaps it is his great respect for that formula that makes him miss the greater absurdity of asking A and B to consult with each other but not with C and yet manage to produce a result that is sure to find favour with (or at least be not unacceptable to) C, a situation reminiscent of the principle of privity of contract. He asks whether the minority leader must be clairvoyant but appears not to notice that the same question is available from the other direction. (The 1995 amendment provides that the list of 6 names must be “submitted by the Minority Leader after consultation with the political parties represented in the National Assembly other than the party to which the President belongs”) Unless, of course, there was something intrinsic to the process in 1992 more likely to deliver such a result. If so, as we will see below, it evaporated in 2017.

Again, deploying BRS would provide no basis for the president and minority leader to embark upon a search for a second and third list. There is no provision for this foray which is really what has caused the level of expectation to rise leading to disappointment. It is therefore arguable that both the president and the minority leader breached the constitution by so doing. However you interpret the words “fails to submit a list as provided for”, they are followed by “the President shall appoint”. Basic reading skills and law will equate the word “shall” with “must”. There is no latitude provided for the president and minority leader to extend the process , especially when the following is considered.

The only consultation provided for in the amendment was never with the party forming the government but with “parties represented in the National Assembly”. BRS would draw attention to the first flaw in the process in 2017 that was never intended to last beyond 1992; in 2017 there was no other party for the minority leader to consult with. The constitution having precluded consultation between the president’s party  and the minority leader, it is arguable that it was quite a stretch for the president and minority leader to invent a consultative process that somehow managed to create an extension beyond the attempt at the first list. This requires one to read into the constitutional amendment a provision that was never there to begin with. One suspects that as the challenges unfold, the court will have something to say on this.

I again call upon the intelligentsia of our good country to refrain from relying on the caption or the bottom line of long letters (including this one!). And refrain from even picking up an attitude before you pick up your old 4th form comprehension exercises for a refresher and your dictionary if you have to – in the case of Mr. Nandlall!. In this way we would avoid becoming WC’s (willing conveyors) of propaganda.

Yours faithfully,

Frederick Collins

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