Attorney General hints at taking Justice Persaud to Judicial Service Commission for personal attack; says High Court decision disregard’s provoking Venezuela

Last Updated on Sunday, 28 July 2024, 9:11 by Writer

Attorney General Anil Nandlall on Saturday night accused High Court Judge Gino Persaud of displaying poor judgement by attacking him personally with “intemperate sentiments”, and ignored the likelihood of provoking Venezuela over Guyana’s sovereignty by allowing the registration of a foreign Arbitral Award in Guyana.

Mr Nandlall said government would appeal the High Court’s decision, and he left open the possibility of complaining about Justice Persaud’s alleged conduct to the constitutional body that recommends the appointment and disciplining of judges. “A complaint to the Judicial Service Commission remains an option. I never intentionally disrespect courts nor will I tolerate disrespect. At least, the Office which I hold deserves better,” he said.

While the Attorney General did not mention the details of the case, it concerns the Guyana High Court’s adoption of a July 2019 arbitration decision in favour of the American oil company, ConocoPhillips. After the Venezuelan Government nationalized the assets of ConocoPhillips, that American oil company took PDVSA to arbitration and won a huge award. ConocoPhillips then sought to enforce the award against PDVSA in countries where they had assets. Guyana under the Petrocaribe agreement has money holding for PDVSA and Venezuela under the repayment of the loans under Petrocaribe. So far, the Guyana government’s escrow account for the payment to Venezuela has a deposit of US$32.01 million.

Justice Persaud said he disagreed with Attorney General Nandlall’s public policy argument, saying it could not be relied upon to defeat the ConocoPhillips enforcement application. “I do not accept that recognition and enforcement of the Award would be contrary to public policy within the parameters argued by the Attorney General. This argument is misconceived,” the judge said.

But Attorney General Nandlall said the Arbitration Act of Guyana provides for objection to the registration of such an award on the grounds that its enforcement would be contrary to the public policy of Guyana. In that case, he said it would be contrary to the public policy of Guyana to have the said Award registered and enforced in Guyana because of this country’s current relations with Venezuela and the United States’ imposition of sanctions against the Venezuelan government, and in particular, one of the companies named in the Arbitral Award,

Mr Nandlall detailed that Guyana’s border controversy with Venezuela, the bellicose threats of invasion, the Venezuelan Referendum, and the continuous misuse by Venezuela of innocent occurrences to accuse Guyana of acting proactively, escalating tensions and of provoking a response from Venezuela should have been factored in from a public policy perspective.

The legal team, headed by the Attorney General, also noted that the International Court of Justice’s (ICJ) Interim Order prohibits Guyana and Venezuela from taking any action which might aggravate or extend the dispute before the Court. He said the State also submitted to the Court the Argyle Declaration in which the presidents of both countries committed not to do anything that would escalate tensions or aggravate the controversy. “Against that backdrop, we submitted that it would clearly be injurious to the public interest to facilitate the enforcement of this Award in Guyana,” he said.

The State’s battery of lawyers, he said, also submitted that the two other arms of the Guyana government – the Executive and the National Assembly (the Legislature) – have already pledged their unreserved support for Guyana to take a united position on this matter, through Resolution No. 66, which was debated and passed unanimously in the National Assembly on 6 November, 2023. He said the State argued that this Resolution expresses the mandate of the citizens of Guyana through their elected representatives in accordance with Article 9 of the Constitution.

We submitted that “it is a justifiable apprehension that if the judicial arm is to extend its processes to be used to allow a foreign company to garnish or levy upon Venezuelan property held by Guyana, such an act will be interpreted, or is capable of being interpreted, as an act of aggression against Venezuela, and an act, if not violative of the letter, would certainly be violative of the spirit, of both the Argyle Declaration and the ICJ’s Interim Measures. In short, it would therefore be patently injurious to the national interest and public policy of Guyana for this Honourable Court to lend its jurisdiction to such a process.”

The Attorney General said the State also examined the various case law authorities that evaluated what in law would constitute public policy and its violations. He recalled that Paragraph 71 of the State’s submissions which Justice Persaud found offensive, largely consisted of a quote from one of the decided cases. It reads: “Should this Court register the Applicant’s Arbitral Award, such action would not only be contrary to public policy, but would be “wholly offensive to the ordinary, reasonable and fully informed member of the public on whose behalf the powers of the powers of the State are exercised.” [see Richardson v Mellish (1824) 2 Bing 229].”

“I reiterate that no disrespect was conveyed in our Submissions. Indeed, they were strong and emphatic. The justice of the case demanded it. The nation’s sovereignty is at stake. There is no greater cause. The strongest of language and the most passionate advocacy would not be sufficient. I have no regrets whatsoever,” he said.

The Judge said in his decision that, “The notions submitted by the AG in writing at paragraphs 69 and 71 of his submissions that if I were to recognise the Award it would be wholly offensive and expose the Court in the minds of the Guyanese people to allegations of unpatriotic and anti-nationalist conduct is an offensive submission if not a veiled threat to the independence of the judiciary designed to intimidate the Court.”

However, the Attorney General described he could not allow Mr Persaud’s “infelicitous” remarks, now in the public, to go unchallenged. “As leader of the Bar, leaving such infelicitous remarks on the public record without repudiation is simply not an option.”

Mr Nandlall dismissed Justice Persaud’s opinion that the State’s written Submissions conveyed a “veiled threat” to the independence of the Judiciary. “I reject this interpretation absolutely.” The Attorney General said he risked causing Justice Persaud to “descend further” if he responded to the other injudicious ad hominem and disparaging remarks directed to the Office of the Attorney General.

In his decision, Justice Persaud said, “The AG is not the legal guardian of the minds of the Guyanese people. It is an opportunistic political argument perhaps best suited to the hustings of an elections campaign than a sound legal argument suitable for Court. It is most unfortunate, disrespectful and should have been withdrawn. No practitioner (whether a novitiate recently admitted to the Bar or the Leader of the Bar) should ever accuse a sitting judge of unpatriotic and anti-nationalist conduct moreover to reduce it into writing.”